Tech-Sonic, Inc. v. Sonics & Materials, Inc.

Filing 144

ORDER. For the reasons set forth in the attached ruling: The 119 Motion to Dismiss for Lack of Jurisdiction is DENIED without prejudice. The plaintiff's 123 Motion for Summary Judgment is DENIED without prejudice. The defendant's 126 Motion for Summary Judgment is DENIED without prejudice. The defendant's 138 Motion for Extension of Time Nunc Pro Tunc is GRANTED. The plaintiff's 135 Motion to Strike is DENIED.A telephonic status conference will be held on Au gust 24, 2015, at 3:00pm to discuss scheduling, including the deadline for the parties' joint trial memorandum and whether to hold a separate evidentiary hearing on the issue of jurisdiction in advance of trial. Chambers will email the parties with call-in instructions. Signed by Judge Michael P. Shea on 8/7/2015. (Luedeman, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
TECH-SONIC, INC.,
Plaintiff,

:
No. 3:12-cv-01376 (MPS)
:
:
v.
:
:
SONICS & MATERIALS, INC.,
:
Defendant.
:
August 7, 2015
______________________________________________________________________________
MEMORANDUM OF DECISION

I.

Introduction
In this case, plaintiff Tech-Sonic, Inc. claims that defendant Sonics & Materials, Inc.

breached an exclusive sales agreement. 1 The defendant has moved to dismiss the case for lack of
subject matter jurisdiction, arguing that the plaintiff lacks standing to bring the suit. On the same
day as that motion was filed, both parties moved for summary judgment on the merits of the
case. The Court will deny the defendant’s motion to dismiss because the plaintiff’s standing, and
thus the Court’s jurisdiction, cannot be determined as a matter of law at this stage and must be
decided after an evidentiary hearing or during the course of trial. The Court will deny the
motions for summary judgment without prejudice to renewal if jurisdiction is found to exist.
II.

Facts
Plaintiff Tech-Sonic, Inc. (“TS USA”) is an Ohio corporation formed in June 2005 with

its principal place of business in Columbus, Ohio. ECF No. 50, Second Am. Compl. (“Compl.”)
¶¶ 1, 19. TS USA is in the business of developing, manufacturing, selling, and distributing
ultrasonic metal welding machines, and replacement tooling for such machines. Id. ¶ 1.

1

The plaintiff originally made other related claims, but all claims except for breach of contract were dismissed by
the Court on February 28, 2013. ECF No. 63.

Defendant Sonics & Materials, Inc. (“Sonics”) is a Delaware corporation with its principal place
of business in Newtown, Connecticut. Id. ¶ 2. Sonics is in the business of providing, among other
things, ultrasonic metal welding systems for bonding conductive materials in applications such
as wire splicing, wire termination, battery tabbing, cable processing, seam welding, and tube
sealing. Id.
TS USA is affiliated with a South Korean company known as TechSonic Co. (“Original
TS”), id. ¶ 11, as well as a Chinese entity known as Beijing TechSonic Equipment Co., Ltd. (“TS
Beijing”), ECF No. 129-1, Pl.’s L.R. 56(a)(1) Statement (“Pl. 56(a)(1) Stat.”) ¶ 8. Byoung Ou
(“Ou”) is the president of TS USA and was the sole shareholder and director of Original TS.
Compl. ¶¶ 9, 12. A fourth affiliate, TechSonic Korea (“TS Korea”) was formed in September
2005 and registered in the name of Sung Min Cho (“Cho”), Ou’s brother-in-law. Pl. 56(a)(1)
Stat. ¶ 10; ECF No. 119-4 at 122, Exh. L to Miodonka Decl. (“TS Korea Registration”). At some
point, Original TS shifted at least some of its business to TS Korea. Pl. 56(a)(1) Stat. ¶ 10; ECF
No. 134-1, Def.’s L.R. 56(a)(2) Statement (“Def. 56(a)(2) Stat.”) ¶ 10.
On February 21, 2005, Sonics and Original TS entered into an exclusive sales agreement,
which granted Original TS the exclusive right to purchase and sell Sonics’s 40 kHz power
supplies and converters to be incorporated into metal welders in Asia (“the Agreement”). Compl.
¶¶ 13-14. The Agreement provides, in relevant part:
1.
[Sonics] will give TechSonic Company, exclusive rights to purchase and
sell the [Sonics] 40kHz power supplies and converters, to be incorporated into
TechSonic metal welders in Asia.
2.
TechSonic Co. does not have exclusive rights to purchase and sell the
[Sonics] 40kHz power supplies and converters for applications that are not for
metal welding.
...
6.
[Sonics’s] responsibilities are to provide power supplies and converters in
a timely manner, honor it’s [sic] warranties, and provide repair services for
TechSonic Co. in [Sonics’s] facility when required.
2

7.
Techsonic Co. agrees to indemnify [Sonics] against all losses and damages
incurred by Techsonic Co., by reason of any claims filed by Techsonic Co.
customers.
...
10.
This Agreement provides the entire understanding between the parties and
may not be altered except by a document in writing, executed by an authorized
officer of TechSonic Co. and by [Sonics] or their authorized agent.
ECF No. 119-4 at 44, Exh. E to Miodonka Decl. The Agreement was later terminated,
effective October 10, 2009. ECF No. 95 (“Summary Judgment Ruling”).
On January 1, 2011, Ou executed a document entitled “Actions Without a Meeting by the
Sole Shareholder and Sole Director of TechSonic Co.,” which provides, in relevant part:
The Corporation is a party to that certain Sales Agreement dated February 21, 2005 . . .
between the Corporation and [Sonics] . . . . The Corporation believes [Sonics] is in
breach of the Sales Agreement . . . . The Corporation has been dissolved and is in the
process of winding up its affairs and . . . hereby does, assign to [TS USA], and its
successors and permitted assigns, all of its right title and interest in and to the [Sonics]
Claims, including the right to prosecute and pursue such claims in civil litigation, the
right to settlement and compromise the [Sonics] Claims and to benefit from any damages
or settlement proceeds received from [Sonics], its successors or permitted assigns as a
result of any of the foregoing.
ECF No. 119-4 at 86, Exh. G to Miodonka Decl.
TS USA alleges that Sonics breached the Agreement by making sales to other
Asian customers during the term of the Agreement. See Compl. ¶¶ 44-45; Def. 56(a)(2)
Stat. ¶¶ 13-15. Sonics denies that its actions constituted a breach of the Agreement, and it
also argues that TS USA lacks standing to bring this lawsuit. Specifically, Sonics claims
that on March 31, 2008, Original TS “ceased operations and was dissolved,” having
previously “transferred all of its business, operations, and assets to its successor, TS
Korea.” ECF No. 119-1, Mem. L. Sup. Def.’s Mot. Dismiss (“Def. Mot. Dis.”) at 5
(emphasis added). Thus, says Sonics, when Ou executed the January 1, 2011 document
purporting to assign rights under the Agreement from Original TS to TS USA, there was
nothing to assign, and therefore TS USA has no right to enforce the Agreement. Sonics
3

also argues that even if TS USA has standing to enforce the Agreement, it lacks standing
to assert any damages. Id. at 14-22.
Sonics points to three sources of evidence suggesting that Original TS’s assets had
already been transferred prior to January 2011. First is Ou’s May 21, 2014 deposition:
Q:
A:
Q:
A:
...
Q:
A:
...
Q:
A:
...
Q:

A:
Q:
A:

Ok. And at the time when you dissolved TechSonic in March of 2008—
Yes.
—at that time were all of the assets transferred to TechSonic Korea from
TechSonic Co.?
Well, all the business and everything.
So TechSonic Korea took over for TechSonic Co., is that correct?
Yes. Same people, same thing. . . . So we use [Cho’s] name temporarily, until we
formally set up as TechSonic Korea as the branch office of Tech-Sonic U.S.
Was there ever a formal assignment of assets from TechSonic Co. to TechSonic
Korea?
There was nothing.
Okay. And I think you also said that even before March 2008, but certainly as of
March 2008, TechSonic Korea, the business in Mr. Cho’s name, was doing all of
the business that TechSonic Co. had been doing, is that correct?
No. I used his name, registered that in TechSonic Korea, and everything was
continued and same; people, money, assets, everything.
Contracts?
Yeah.

ECF No. 119-4 at 19, Exh. B to Miodonka Decl. (“Ou May 2014 Dep.”) at 14, 20, 30.
Second is a complaint filed by Ou in a Korean court in February 2012. ECF No. 119-4 at
47, Exh. F to Miodonka Decl. (“Korean Complaint”). In the Korean Complaint, Ou sued his
brother-in-law Cho, disputing the ownership of TS Korea. Id. Ou claimed that although TS
Korea was registered in Cho’s name for official purposes, Ou was the true owner in substance.
Id. Ou also accused Cho of stealing TS Korea’s business by transferring it to Kormax System
(“Kormax”), another business entity registered in Cho’s name. Id. Ou’s complaint was dismissed
as lacking merit. ECF No. 119-2 at 16, Exh. C to Han Decl. (“Korean Decision”). Sonics points
to a portion of the Korean Complaint in which Ou alleged that he
4

agreed to complete all existing transactions of Tech-Sonic Co., Ltd. [i.e., Original TS] in
reality and to close down the business according to [Cho’s] recommendations, established
a proprietorship in the trade name of Tech-Sonic Korea under the name of [Cho] around
September 1, 2005, and transferred the existing business assets that had been held by
Tech-Sonic Co., Ltd. [i.e., Original TS] such as sales, human resources, accounts, etc., to
Tech-Sonic Korea and continued the business operation.
Korean Complaint at 5-6.
Third is the fact that by letter dated August 18, 2007, Ou authorized the closure of
Original TS, and the company was formally dissolved on March 31, 2008, according to a
government record, events that, according to Sonics, bely any claim that Original TS retained its
rights under the Agreement to be assigned three years later to TS USA. ECF No. 119-4 at 119,
Exh. K to Miodonka Decl. (“Ou Letter”); ECF No. 119-4 at 125, Exh. M to Miodonka Decl.
(“Certificate of Dissolution”).
In response, TS USA claims that Original TS never assigned rights under the Agreement
prior to the January 1, 2011 transfer to TS USA and that the transactions between Original TS
and TS Korea involved the transfer of its Korean business to TS Korea, rather than all of
Original TS’s assets. ECF No. 136, Pl.’s Mem. Opp. Def.’s Mot. Dismiss (“Pl. Opp. Dis.”) at 7.
While acknowledging the 2008 dissolution of Original TS, TS USA contends that Original TS
did not liquidate and distribute its assets in the years following its closure and that Original TS
therefore retained ownership of TS Beijing as well as its rights under the Agreement. Id. at 911. 2
Supporting this claim are Ou’s own affidavits and a Chinese business license listing
“Techsonic Co., Ltd.” as “Shareholder (Founder)” of TS Beijing. ECF No. 119-4 at 119, Exh. I
to Miodonka Decl. (“Chinese License”); ECF No. 136-1, Ou Oct. 2014 Decl. ¶¶ 5, 9-11; ECF

2

See generally Korean Commercial Act, Article 245 (“To the extent necessary for achieving the objectives of
liquidation, a company shall be deemed to continue to exist even after its dissolution.”), available at
<http://elaw.klri.re.kr/eng_service/main.do> (last visited July 16, 2015).

5

No. 125-2, Ou Sept. 2014 Decl. ¶ 25 (“Once TechSonic Korea was formed, TechSonic shifted its
Korean business and sales to TechSonic Korea.”) (emphasis added). TS USA also argues that
Sonics has unfairly characterized Ou’s deposition testimony, pointing to other portions of
testimony that support its characterization of the transactions between Original TS and TS
Korea:
Q:
A:
Q:
A:
Q:
A:
Q:
A:

Was there every any formal assignment of assets from TechSonic Co. to
TechSonic Korea.
There was nothing.
No formal documentation?
No formal. Nothing, nothing.
No document for tax purposes, anything like that?
No.
Just TechSonic Korea just took over the business?
Yeah. I mean we slowly, you know, we informed customers, yes.

ECF No. 136-2, Ou May 2014 Dep. at 20-21.
Q:
A:
Q:
A:
...
Q:
A:

All the assets of Tech-Sonic Co. were transferred to TechSonic Korea—
No.
—in March 2008 when it was—correct?
No.
What happened to Tech-Sonic Co.’s ownership interest in Beijing Tech-Sonic
when Tech-Sonic Co. dissolved in 2008?
Nothing.

ECF No. 136-3, Ou August 2014 Dep. at 37-38, 44.
III.

Sonics’s Motion to Dismiss for Lack of Subject Matter Jurisdiction
For the reasons set forth below, Sonics’s motion to dismiss for lack of subject matter

jurisdiction is denied without prejudice.
A.

Legal Standards

“A plaintiff claiming [Article III standing] must establish, first, that it has sustained an
injury in fact which is both concrete and particularized and actual or imminent; second, that the
injury was in some sense caused by the opponent’s action or omission; and finally, that a
6

favorable resolution of the case is likely to redress the injury.” Cortlandt St. Recovery Corp. v.
Hellas Telecommunications, S.a.r.l, --- F.3d ----, No. 13-3325, 2015 WL 3875220, at *3 (2d Cir.
June 24, 2015) (quotation marks and citations omitted). In addition, “[t]he prudential standing
rule . . . bars litigants from asserting the rights or legal interests of others in order to obtain relief
from injury to themselves.” United States v. Suarez, --- F.3d ----, No. 14-2378-CR, 2015 WL
3953289, at *2 (2d Cir. June 30, 2015) (quotation marks omitted).
“Once [a] motion to dismiss for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1) put[s] .
. . Article III standing in issue, the District Court has leeway as to the procedure it wishes to
follow.” Alliance For Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 87-88 (2d
Cir. 2006). “[T]he plaintiff’s averment of jurisdictional facts will normally be met in one of three
ways: (1) by a Rule 12(b)[] motion, which assumes the truth of the plaintiff’s factual allegations
for purposes of the motion and challenges their sufficiency, (2) by a Rule 56 motion, which
asserts that there are undisputed facts demonstrating the absence of jurisdiction, or (3) by a
request for an adjudication of disputed jurisdictional facts, either at a hearing on the issue of
jurisdiction or in the course of trial on the merits.” Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A.,
722 F.3d 81, 85 (2d Cir. 2013). “If the defendant asserts in a Rule 56 motion that undisputed
facts show the absence of jurisdiction, the court proceeds, as with any summary judgment
motion, to determine if undisputed facts exist that warrant the relief sought.” Id. “[I]f a genuine
dispute of material fact exists, the Court may conduct a hearing limited to Article III standing . . .
[o]r, where the evidence concerning standing overlaps with evidence on the merits, the Court
might prefer to proceed to trial and make its jurisdictional ruling at the close of the evidence.”
Alliance, 436 F.3d at 88.

7

B.

Discussion

Sonics has not requested an evidentiary hearing on the issue of jurisdiction and asserts
that “[t]he facts pertaining to the Court’s subject matter jurisdiction are not in dispute.” Def. Mot.
Dis. at 2. 3 Therefore, at this stage, in the absence of an evidentiary hearing, the Court will assess
the evidence under a Rule 56 standard. As elaborated below, the Court denies Sonics’s motion to
dismiss because there are genuine disputes of material fact that prevent the Court from
determining the issue of jurisdiction without an evidentiary hearing. The Court will either hold a
separate evidentiary hearing on that issue or decide the issue after hearing the evidence at trial—
a choice the Court will make after hearing from the parties at a status conference to be convened
following entry of this ruling.
i.

Dispute as to the Assignment of Rights to TS USA

Because “an assignee can sue based on his assignor’s injuries,” Sprint Commc’ns Co.,
L.P. v. APCC Servs., Inc., 554 U.S. 269, 286 (2008), whether Original TS in fact assigned its
rights under the Agreement to TS USA is material to the question of TS USA’s standing in that it
“might affect the outcome of the suit under the governing law,” Konikoff v. Prudential Ins. Co. of
America, 234 F.3d 92, 97 (2d Cir. 2000). The Court must therefore determine whether there is a
genuine dispute as to that fact. See Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116
(2d Cir. 2006) (“A dispute regarding a material fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”) (citations and quotation marks
omitted).

3

See also Def. Mot. Dis. at 12 (“It cannot be seriously disputed that the Company was dissolved no later than March
31, 2008, and that it has not engaged in any operations or paid any taxes since that time. It is also very clear that the
Company transferred all of its personnel, assets, business operations and contracts to a successor entity, TS Korea,
at or about the same time. Despite these undisputed facts, Plaintiff would have the Court believe that the Company
transferred the entirety of its operations and assets to TS Korea except for its rights in the Sales Agreement, which
rights it sat on for almost three years before assigning them to Plaintiff.”) (citations omitted).

8

Construing the entire record in the light most favorable to TS USA, the Court finds a
genuine dispute as to this issue. Sonics has not presented any documents directly evidencing a
pre-2011 transfer of assets, including rights under the Agreement, from Original TS to TS Korea.
And a reasonable fact-finder would not necessarily conclude from the three sources of indirect
evidence—Ou’s deposition, the Korean Complaint, and the documents relating to Original TS’s
dissolution in 2008—that Original TS no longer possessed rights under the Agreement when Ou
executed the January 2011 assignment to TS USA.
Ou’s deposition testimony is ambiguous in its characterization of the transactions
between Original TS and TS Korea, especially in light of what appears to be a possible language
barrier or at least confusion about what was being asked. See Ou August 2014 Dep. at 46-47
(“The question again? . . . I don’t understand what he’s saying. . . . Question again? I don’t
understand the words.”). Although Ou agrees in his testimony that “all the business” and
“contracts” were transferred, he never states that rights under the Agreement were transferred
away by Original TS prior to being assigned to TS USA in 2011. A reasonable fact-finder could
interpret Ou’s reference to “all the business,” together with the later clarification in his
affidavit—which does not directly contradict the deposition testimony—and the fuller record, to
mean that all Korean business operations were transferred to TS Korea, while Original TS
retained control over actual or prospective operations elsewhere, including ownership of TS
Beijing. This is supported by the Chinese License, which appears to postdate Original TS’s
dissolution, showing Original TS’s continued ownership of TS Beijing.
That version of events could also be reconciled with a reasonable interpretation of the
Korean Complaint, which refers to the plans between Ou and Cho as a venture to create a
“Korean Branch Office,” and is a creditable explanation of what occurred following the 2008
dissolution. In the absence of any documents directly evidencing liquidation or distribution of
9

Original TS’s assets, a reasonable fact-finder could decline to draw the inference that Sonics
urges—i.e., that Original TS distributed all its assets either before or soon after dissolution—and
instead credit Ou’s claim that Original TS retained assets, including rights under the Agreement,
after dissolution. Ou’s version of events is not, as Sonics argues, patently implausible. Original
TS may well have had reason to retain its rights under the Agreement—which by its own terms
applies to sales in all of Asia, not only in Korea—for various purposes, such as potential
assignment to TS Beijing (which, the evidence in the record would permit a reasonable factfinder to conclude, also remained as an asset of Original TS), notwithstanding the plan to transfer
certain business to TS Korea and create a new “Korean Branch Office.”
ii.

Dispute as to Damages

Sonics also argues that, even if rights under the Agreement were validly assigned to TS
USA so that it may assert claims based on injuries to Original TS, the only injuries that are
alleged are the profits that were lost by Original TS’s subsidiary TS Beijing, which cannot be
recovered by Original TS or its assigns. Def. Mot. Dis. at 14. Even if that argument is correct and
Original TS itself suffered no actual damages, however, Original TS and its assigns would still
have standing to sue for breach of the Agreement. Nominal damages for breach of contract are
unavailable under Connecticut law, Lydall, Inc. v. Ruschmeyer, 919 A.2d 421, 449 (Conn. 2007),
and Article III standing does not disappear merely because a plaintiff’s damages are limited to
nominal damages, see J.P. Morgan Chase Bank, N.A. v. McDonald, 760 F.3d 646, 650-51 (7th
Cir. 2014) (“When one party fails to honor its commitments, the other party to the contract
suffers a legal injury sufficient to create standing even where that party seems not to have
incurred monetary loss or other concrete harm.”); UV Indus., Inc. v. Sharon Steel Corp., 631 F.
Supp. 1219, 1221 (S.D.N.Y. 1986) (rejecting “[d]efendant’s claim that plaintiffs lack standing,”
because “[p]laintiffs, as parties to a contract, allege a breach of that contract” and “[i]n the event
10

of a breach, the wronged party is entitled at least to recover nominal damages”). Thus, even if
there were no genuine dispute about the existence of actual damages, Sonics would not be
“entitled to judgment as a matter of law” on the issue of standing and this Court’s jurisdiction.
Fed. R. Civ. P. 56(a).
IV.

The Parties’ Motions for Summary Judgment
Because there is a genuine dispute of material fact as to whether TS USA has rights under

the Agreement and therefore standing to bring this lawsuit, the Court also denies without
prejudice TS USA’s motion for summary judgment. See Dep’t of Commerce v. U.S. House of
Representatives, 525 U.S. 316, 329 (1999) (“To prevail on a Federal Rule of Civil Procedure 56
motion for summary judgment . . . a plaintiff must establish that there exists no genuine issue of
material fact as to justiciability or the merits.”); Beacon Enterprises, Inc. v. Menzies, 715 F.2d
757, 762 (2d Cir. 1983) (“For a plaintiff to prevail on summary judgment when defendant
contests personal jurisdiction . . . he must demonstrate that there is no genuine issue as to any
material fact on the jurisdictional question.”).
As to Sonics’s motion for summary judgment, Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 93 (1998), instructs this Court not to reach the merits while Sonics’s jurisdictional
objection remains unresolved. Steel Co. expressly rejects the exercise of so-called “hypothetical
jurisdiction”—that is, the practice of “proceed[ing] immediately to the merits question, despite
jurisdictional objections, . . . where (1) the merits question is more readily resolved, and (2) the
prevailing party on the merits would be the same as the prevailing party were jurisdiction
denied.” Id. at 93. “A doctrine of ‘hypothetical jurisdiction’ that enables a court to resolve
contested questions of law when its jurisdiction is in doubt . . . produces nothing more than a
hypothetical judgment—which comes to the same thing as an advisory opinion, disapproved by
this Court from the beginning.” Id. at 101. “[F]ederal courts should be certain of their jurisdiction
11

before reaching the merits of a case.” Id. at 110 (O’Connor, J., concurring). Because, for the
reasons already stated, the Court is unable to resolve Sonics’s jurisdictional objection until
evidence is heard, either at trial or at a separate evidentiary hearing, any judgment on the merits
must also await the hearing of evidence. Sonics’s motion for summary judgment is therefore
denied without prejudice.
Depending on the procedural path the Court follows to resolve the factual questions
concerning the assignment, the Court may permit the parties either to renew their summary
judgment motions or to renew their arguments at trial through motions for judgment as a matter
of law. After conferring with the parties, the Court will decide whether to hold a separate
evidentiary hearing to resolve the jurisdictional issue or to decide the issue in the context of the
trial.
V.

TS USA’s Motion to Strike
TS USA moves to strike several of Sonics’s filings. It first moves to strike two of

Sonics’s submissions in support of its summary judgment motion that were filed between
midnight and 1:00am on September 24, 2014, less than an hour past the dispositive motions
deadline of September 23, 2014. It also moves to strike portions of Sonics’s briefing as
excessively long. Although Sonics’s two motions both comply with the 40-page limit for briefs
under D. Conn. L.R. Civ. P. 7(a)(2), TS USA argues that the two motions should be considered
as a single 54-page dispositive motion because the motion to dismiss for lack of jurisdiction
relies upon submissions beyond the pleadings. Finally, it moves to strike from the record
documents and expert testimony that it claims were not properly disclosed by Sonics during
discovery—specifically, affidavits by two attorneys offering analysis of Korean and Chinese law

12

(ECF Nos. 119-2, 119-3), and various translated documents. For the following reasons, the
motion to strike is denied in its entirety. 4
“Under Fed. R. Civ. P. 12(f), a court may strike ‘any insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter’ from a party’s pleading.” Ricci v.
Destefano, No. 3:04 CV 1109 JBA, 2006 WL 2666081, at *1 (D. Conn. Sept. 15, 2006).
“[M]otions to strike are disfavored and not routinely granted, and it is the movant’s burden to
demonstrate prejudice by the inclusion of the alleged offending material.” Holmes v. Fischer,
764 F. Supp. 2d 523, 532 (W.D.N.Y. 2011). “Rule 12(f) allows a court to strike pleadings only,”
and “[t]herefore it is inappropriate to strike material contained in exhibits to motions.” Ricci,
2006 WL 2666081, at *1. “Parties . . . may point out in their summary judgment briefing
evidence that they believe should not be considered because it is inadmissible or immaterial, but
they may not utilize a motion to strike to make such arguments and thereby evade the page limits
for a summary judgment brief.” Id. at *3.
Even if the Court were to construe TS USA’s motion to strike as an argument that certain
pieces of evidence submitted by Sonics should be excluded from consideration, rather than
formally stricken from the record, it would deny TS USA’s request. The Court finds good cause
to grant Sonics’s nunc pro tunc motion to extend the deadline for summary judgment filings by
one day if only because doing otherwise might result in denying relief based on the technicality
of a narrowly missed deadline. As for the length of Sonics’s briefing, TS USA has cited no
authority for the proposition that Sonics’s two briefs, which address logically distinct matters and
seek different relief, should be treated as part of a single motion for the purposes of L.R. 7(a)(2),

4

Although this motion relates in part to the summary judgment motions, which the Court does not reach and denies
without prejudice, it also relates in part to the motion to dismiss, which the Court has reached and denies without
prejudice because of the presence of genuine disputes of material fact.

13

and in any event, the Court would grant Sonics permission under L.R. 7(a)(2) to file 54 pages of
briefing on the issues in this case.
The Court also declines to exclude evidence that, according to TS USA, was inadequately
disclosed during discovery. “If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37(c). “The purpose of the rule is to prevent the practice
of ‘sandbagging’ an opposing party with new evidence.” Haas v. Delaware & Hudson Ry. Co.,
282 F. App’x 84, 86 (2d Cir. 2008). In deciding whether to preclude evidence under Rule 37(c),
a court considers “(1) the party’s explanation for the failure to comply with the [disclosure
requirement]; (2) the importance of the testimony of the precluded witness[es]; (3) the prejudice
suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4)
the possibility of a continuance.” Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006).
“[A]lthough a ‘bad-faith’ violation of the Rule 26 is not required in order to exclude evidence
pursuant to Rule 37, it can be taken into account as part of the party’s explanation for its failure
to comply.” Design Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir. 2006). “[P]reclusion is a
drastic remedy and it is generally ordered only where the court finds that the party’s failure to
comply with the requirements was both unjustified and prejudicial.” Equant Integrations Servs.,
Inc. v. United Rentals (N. Am.), Inc., 217 F.R.D. 113, 118 (D. Conn. 2003) (quotation marks
omitted).
Even if Sonics had a duty to disclose the two attorneys as expert witnesses during
discovery, Sonics’s explanation for the failure to disclose—that it provided the affidavits solely
for the purpose of legal argumentation and to aid the Court in its assessment of foreign law—
does not suggest bad faith “sandbagging” or even an unreasonable interpretation of its duties
14

under the Federal Rules of Civil Procedure. 5 Nor has there been any meaningful prejudice. As it
relates to the motion to dismiss, the issue is moot because the Court did not rely on the affidavits
in reaching its conclusions. See, e.g., Radolf v. Univ. of Conn., 364 F. Supp. 2d 204, 230 (D.
Conn. 2005) (“In reaching its decision on the two motions for summary judgment, the Court did
not rely on this material that Defendants seek to strike. Therefore, Defendants’ Motions to Strike
. . . are denied as moot.”). And going forward, should the issue of foreign law arise again, TS
USA will have had plenty of time to prepare its own arguments or affidavits regarding foreign
law in response, which the Court would permit TS USA to submit.
TS USA has cited no authority for its claim that Sonics had a duty to disclose its
translator as an expert witness during discovery. As for production of the translations
themselves, “[a]lthough the case law on this issue is also relatively sparse, the courts that have
ruled on it have found that the party responding to document demands are under no obligation
under the Federal Rules to translate documents produced.” Nature’s Plus Nordic A/S v. Natural
Organics, Inc., 274 F.R.D. 437, 441 (E.D.N.Y. 2011); accord Briese Lichttechnik Vertriebs
GmbH v. Langton, 272 F.R.D. 369, 374 n.4 (S.D.N.Y. 2011). Even assuming arguendo that
some such disclosure obligation existed, TS USA was not meaningfully prejudiced by not
receiving the translations earlier. TS USA has not challenged the accuracy of any of the
translations submitted by Sonics. And to the extent that TS USA would have benefitted from
having translated versions of the documents at an earlier stage, it could have secured translations

5

Although offered by an “expert,” foreign legal analysis is arguably more akin to legal argumentation than
evidence. See Fed. R. Civ. P. 44.1 (providing that a ruling on “an issue about a foreign country’s law . . . must be
treated as a ruling on a question of law”). Compare Silberman v. Innovation Luggage, Inc., No. 01 CIV. 7109
GELDF, 2002 WL 31175226, at *2 (S.D.N.Y. Sept. 30, 2002) (“[A] party is entitled to discovery regarding its
adversary’s foreign law expert, just as it is entitled to discovery regarding any other kind of expert.”); with Universal
Trading & Inv. Co. v. Kiritchenko, No. C-99-03073 MMC (EDL), 2007 WL 2141296, at *4 (N.D. Cal. July 25,
2007) (“Defendant need not provide the expert reports of any person who will be providing information on foreign
law solely to the court.”); and BCCI Holdings (Luxembourg), Societe Anonyme v. Khalil, 184 F.R.D. 3, 9 (D.D.C.
1999).

15

itself using its own resources. Sonics has represented—and TS USA has not claimed otherwise—
that TS USA had access to all the original Korean and Chinese documents during discovery.
Further, both of Sonics’s dispositive motions were denied, and TS USA’s dispositive motion was
denied because of a genuine factual dispute about jurisdiction that would exist on the basis of
Ou’s deposition alone. Should the translated documents continue to be relevant in future
proceedings, TS USA will have already had access to them, as well as information about the
translator, for many months.
VI.

Conclusion
For the reasons set forth above: The Motion to Dismiss for Lack of Jurisdiction (ECF No.

119) is DENIED without prejudice. The plaintiff’s Motion for Summary Judgment (ECF No.
123) is DENIED without prejudice. The defendant’s Motion for Summary Judgment (ECF No.
126) is DENIED without prejudice. The defendant’s Motion for Extension of Time Nunc Pro
Tunc (ECF No. 138) is GRANTED. The plaintiff’s Motion to Strike (ECF No. 135) is DENIED.
A telephonic status conference will be held on August 24, 2015, at 3:00pm to discuss
scheduling, including the deadline for the parties’ joint trial memorandum and whether to hold a
separate evidentiary hearing on the issue of jurisdiction in advance of trial. Chambers will email
the parties with call-in instructions.
SO ORDERED this 7th day of August 2015 at Hartford, Connecticut.

/s/
a
Michael P. Shea
United States District Judge

16