Hemlock Semiconductor Corporation v. Kyocera Corporation

Filing 111

ORDER Provisionally Granting 90 Defendant Kyocera's Motion to Seal Exhibits; Granting 100 Hemlock's Motion to Strike Counterclaims 3, 4, 5 and 6 as asserted in Kyocera's amended answer. Signed by District Judge Thomas L. Ludington. (LWag)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
HEMLOCK SEMICONDUCTOR
CORPORATION, et al.,
Plaintiffs,
v

Case No. 15-cv-11236
Honorable Thomas L. Ludington

KYOCERA CORPORATION,
Defendant.
__________________________________________/
ORDER PROVISIONALLY GRANTING DEFENDANT’S MOTION TO SEAL,
GRANTING DEFENDANT LEAVE TO FILE DOCUMENTS UNDER SEAL,
GRANTING PLAINTIFF’S MOTION TO STRIKE, AND STRIKING REASSERTED
COUNTERCLAIMS
Plaintiff Hemlock Semiconductor (“Hemlock”) and Defendant Kyocera are significant
participants in the global solar energy industry. Their immediate dispute arises from a series of
contracts for the sale of quantities of industrial-grade polycrystalline silicon by Hemlock to
Kyocera. Following changes in global solar market conditions, Kyocera sought to excuse its
performance under a force majeure provision in the parties’ contracts. In response, Hemlock
sought adequate assurances that Kyocera would perform its obligations under the agreements.
When Hemlock concluded that Kyocera had not provided adequate assurances that it would
perform its contractual commitment, it initiated this suit.
Hemlock filed its initial complaint on April 1, 2015, and an amended complaint on April
29, 2015, asserting that Kyocera had failed to provide adequate assurances of performances
under MCLA § 440.2609 and had repudiated Supply Agreements I-III. ECF No. 4. Hemlock
also seeks a declaratory judgment that Supply Agreements I-III are not unconscionable and an
anti-suit injunction to prevent Kyocera from further prosecuting a related action in Tokyo. Id.

Kyocera filed its answer together with six counterclaims on July 10, 2015. ECF No. 9. On
January 6, 2016 the Court granted Hemlock’s motions to dismiss Kyocera’s counterclaims and
strike Kyocera’s Japanese antitrust defense. ECF No. 61. On March 11, 2016, this matter was
consolidated with a related action between Hemlock Semiconductor LLC (“Hemlock LLC”) and
Kyocera regarding the enforceability of Supply Agreement IV. ECF No. 83.
Following consolidation, on March 18, 2016 Hemlock filed an amended, consolidated
complaint. See ECF No. 85. On April 8, 2016 Defendant Kyocera filed its answer. See ECF No.
89. Kyocera also filed six counterclaims with the answer, four of which reassert claims that were
previously dismissed. Id. Kyocera also filed a motion to seal certain documents in support of its
answer and amended complaint. See ECF No. 90. Hemlock now moves to strike the reasserted
defenses pursuant to Fed. R. Civ. P. 12(f).
I.
Kyocera’s motion to seal will be addressed first. See ECF No. 90. Pursuant to Local Rule
5.3(b)(A), a motion to authorize sealing must:
(i)

state the authority for sealing;

(ii)

include an identification and description of each item proposed for sealing;

(iii)

state the reason that sealing each item is necessary;

(iv)

state the reason that a means other than sealing is not available or
unsatisfactory to preserve the interest advanced by the movant in support
of the seal; and

(v)

have a supporting brief.

E.D. MICH. LR 5.3(b)(A). Defendant Kyocera’s motion complies with these requirements, as it
adequately identifies and describes the documents it would like sealed and the reasons why
sealing each item is necessary. However, because this is Court of public record, Kyocera’s
motion to seal will be granted only on the condition that the documents do not become
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necessary to an adjudicatory process. If the sealed items become relevant to an adjudicatory
process (e.g., argument on the record in open court, publishing of a written opinion, etc.) this
order will need to be revisited and the documents may be unsealed. Until that time, Kyocera’s
motion to seal will be granted, and Kyocera will be granted leave to file Exhibits 1B-1G, 2B2G, 3B-3G, 4B-4G, 13, and 14 to its amended answer under seal.
II.
Under Federal Rule of Civil Procedure 12(f) “[t]he Court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent or scandalous matter.” Hemlock
now moves to strike Kyocera’s reasserted counterclaims, pled in Kyocera’s amended answer as
Counterclaims 3-6. See ECF No. 100.

In its response to Hemlock’s motion, Kyocera

acknowledges that the Court previously dismissed the reasserted claims on the merits, and
explains that it has restated the claims to preserve its ability to appeal the dismissal of those
claims. See ECF No. 103.
Under Sixth Circuit law, Kyocera does not need to replead the dismissed claims to
preserve them for appeal, as the order dismissing the counterclaims preserves them for appeal.
See Hayward v. Cleveland Clinic Found., 759 F.3d 601, 618 (6th Cir. 2014). The counterclaims
are therefore redundant, and will be stricken.
III.
Accordingly, it is ORDERED that Defendant Kyocera’s motion to file exhibits under
seal, ECF No. 90, is provisionally GRANTED.
It is further ORDERED that Kyocera is GRANTED LEAVE Exhibits 1B-1G, 2B2G, 3B-3G, 4B-4G, 13, and 14 to amended answer under seal.

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It is further ORDERED that Hemlock’s motion to strike, ECF No. 100, is
GRANTED.
It is further ORDERED that Counterclaims 3, 4, 5, and 6 as asserted in Kyocera’s
amended answer, ECF No. 89, are STRICKEN.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: June 14, 2016

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on June 14, 2016.
s/Michael A. Sian
MICHAEL A. SIAN

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