Rene Schonefeld Industrie-En Handelsonderneming BV et al v. Jamil et al

Filing 28

ORDER granting 22 plaintiff's Motion to Compel. See attached order. Signed by Judge Donna F. Martinez on 10/12/12. (Constantine, A.)

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT RENE SCHONEFELD INDUSTRIE-EN HANDELSONDERNEMING BV, and THREE KINGS PRODUCTS, LLC, : : : : : : : : : : : : Plaintiffs, v. ARFAN JAMIL, MUHAMMAD NADEEM and SANOVIA NADEEM, Defendants. CASE NO. 3:11cv1450(RNC) RULING ON PLAINTIFFS' MOTION TO COMPEL The plaintiffs, Rene Schonefeld Industrie-en Handelsonderneming B.V. and Three Kings Products, LLC, bring this action against the defendants, Arfan Jamil, Muhammad Nadeem and Sanovia Nadeem.1 The plaintiffs allege infringement of their trademark for Three Kings charcoal in violation of the Lanham Act, 15 U.S.C. ยงยง 1114 and 1125(a). se. The defendants are proceeding pro Pending before the court is the plaintiffs' motion to compel. (Doc. #22.) The motion is granted as set forth below. On March 12, 2012, the pro se defendants, who are California residents, filed a motion to dismiss on the grounds that the court lacks personal jurisdiction and that venue is improper. (Doc. #18.) In the alternative, the defendants seek an order transferring the case to the Central District of California. currently pending. 1 That motion is In the interim, the plaintiffs served the It appears that Arfan Jamil and Muhammad Nadeem are the same individual. defendants with discovery requests - specifically, a set of document production requests and a set of requests for admission. The plaintiffs also issued notices for the defendants' depositions. In response to the plaintiffs' Requests for Admission, the defendants stated: Defendants object to this Request for Admission under FRCP 36 on the grounds that defendants have only made a special appearance[2] and contend that engaging in discovery could be interpreted as a general appearance subjecting the defendants to the jurisdiction of the court. (Doc. #22, Ex. D.) In response to the plaintiffs' Notices of Deposition, the defendants stated: [Defendants] object to Notice of Deposition pursuant to Rule 45 on the grounds that the court has not obtained jurisdiction over these parties, the notice of depositions is defective and the attempts to depose these parties is improper. (Doc. #22, Ex. E.) The defendants did not respond at all to the plaintiffs' requests for production.3 2 "Federal Rule of Civil Procedure 12 long ago abolished the distinction between general and special appearances." Swanson v. City of Hammond, Ind., 411 Fed. App'x 913, 915 (7th Cir. 2011)(citing cases). See Grammenos v. Lemos, 457 F.2d 1067, 1070 (2d Cir. 1972)("The need to file a special appearance in order to object to jurisdiction or venue has vanished. A party can file a general appearance and object to personal jurisdiction or venue at any time before the answer is filed or in the answer.") 3 The plaintiffs state that a substantial number of the outstanding written discovery requests are related to the issue of personal jurisdiction. 2 The defendants have neither moved for a protective order nor requested a stay. They simply have refused to respond to the plaintiffs' discovery requests. As a result, the plaintiffs filed the instant motion to compel. The defendants have not filed a response of any kind to the plaintiffs' motion. On August 9, 2012, the undersigned issued an order scheduling a telephonic hearing on the plaintiffs' motion to compel to be held on September 13, 2012. (Doc. #26.) The hearing did not go forward because, despite ample notice, defendant Sanovia Nadeem was not on the conference call as required. Defendants are advised that a court order is meant to be followed. A party who flouts the court's order does so at his own peril. Update Art, Inc. v. Modiin Publishing, Ltd., 843 F.2d 67, 73 (2d Cir. 1988); see also Agiwal v. Mid Island Mortgage Corp. 555 F.3d 298, 302 (2d Cir. 2009) ("'[A]ll litigants . . . have an obligation to comply with court orders,' and failure to comply may result in sanctions. . . .") The court does not countenance the defendants' conduct. However, at this juncture, the court declines to imposes sanctions. Motion to compel The defendants' refusal to respond to discovery is not wellfounded. Contrary to the defendants' position - that they need not respond to discovery or otherwise participate in the litigation until the court rules on their motion to dismiss it is settled law that a defendant who has properly objected to a lack of personal jurisdiction in an answer 3 or motion to dismiss may thereafter fully participate in the action without waiving the objection. Michelson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 709 F. Supp. 1279, 1282 (S.D.N.Y. 1989)(no waiver of personal jurisdiction where defendants "promptly challenged the court's jurisdiction and their participation in case followed their assertion of that defense"). See Donk v. Miller, No. 99 CIV 3775(KMW)(FM), 2000 WL 218400, at *3 (S.D.N.Y. Feb. 24, 2000). The plaintiffs' motion to compel is granted in part and denied in part. The plaintiffs' request that their requests for admission be deemed admitted is denied. Their request that the defendants be compelled to respond to the propounded discovery and appear for their depositions is granted. Accordingly, IT IS ORDERED: (1) Defendants shall serve the plaintiffs with responses to the discovery requests by November 30, 2012. (2) The defendants' parties will depositions to confer regarding mutually rescheduling agreeable times and the the defendants shall appear at such re-noticed depositions. The defendants are cautioned that failure to comply with the court's discovery orders may result in the imposition of sanctions. See Fed. R. Civ. P. 37(b). SO ORDERED at Hartford, Connecticut this 12th day of October, 2012. _________/s/__________________ Donna F. Martinez United States Magistrate Judge 4

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