American Furukawa, Inc. v. HOSSAIN
Filing
77
OPINION AND ORDER DENYING DEFENDANTS MOTION FOR RECONSIDERATION AS TO ORDER GRANTING PLAINTIFFS MOTION TO AMEND COMPLAINT 53 , AND DENYING PLAINTIFFS MOTION FOR LEAVE TO FILE SUR-REPLY BRIEF IN OPPOSITION TO DEFENDANTS MOTION FOR RECONSIDERATION AS TO ORDER GRANTING PLAINTIFFS MOTION TO AMEND COMPLAINT 70 AS MOOT. Signed by District Judge Gershwin A. Drain. (KWin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AMERICAN FURUKAWA, INC.,
Plaintiff,
Case No. 14-cv-13633
v.
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
ISTHIHAR HOSSAIN, and
HT WIRE & CABLE AMERICAS, LLC,
UNITED STATES MAGISTRATE JUDGE
MICHAEL J. HLUCHANIUK
Defendants.
/
OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION AS TO ORDER
GRANTING PLAINTIFF’S MOTION TO AMEND COMPLAINT [53], AND DENYING PLAINTIFF’S
MOTION FOR LEAVE TO FILE SUR-REPLY BRIEF IN OPPOSITION TO DEFENDANT’S
MOTION FOR RECONSIDERATION AS TO ORDER GRANTING PLAINTIFF’S
MOTION TO AMEND COMPLAINT [70] AS MOOT
I. INTRODUCTION
American Furukawa, Inc. (“Furukawa” or “Plaintiff”) commenced the instant action
against its former employee, Isthihar Hossain (“Defendant”), on September 19, 2014. See Dkt.
No. 1. Presently before the Court is Defendant’s “Motion for Reconsideration as to Order
Granting Plaintiff’s Motion to Amend Complaint” [53]. The Court gave Plaintiff an opportunity
to file a Response to Defendant’s Motion for Reconsideration. See Dkt. No. 54. Plaintiff filed a
Response on September 8, 2015. See Dkt. No. 61. Defendant filed a Reply on September 15,
2015. See Dkt. No. 64. Thereafter, on September 18, 2015, Plaintiff filed a “Motion for Leave to
File Sur-Reply Brief in Opposition to Defendant’s Motion for Reconsideration as to Order
Granting Plaintiff’s Motion to Amend Complaint” [70].
The Court has had an opportunity to thoroughly examine this matter. For the reasons
discussed in detail below, the Court will DENY Defendant’s “Motion for Reconsideration as to
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Order Granting Plaintiff’s Motion to Amend Complaint” [53], and DENY Plaintiff’s “Motion for
Leave to File Sur-Reply Brief in Opposition to Defendant’s Motion for Reconsideration as to
Order Granting Plaintiff’s Motion to Amend Complaint” [70] as MOOT.
II. BACKGROUND
On July 14, 2015, Plaintiff filed a “Motion for Leave to Amend Complaint and add
Party” [14]. The purpose of the motion was to add HT Wire & Cable Americas, LLC (“HT
Wire”) as a party-defendant and assert claims against it because Plaintiff asserted that HT Wire
is a co-conspirator with Defendant Hossain. See Dkt. No. 44 at 7-8. Defendant Hossain failed to
file a Response to Plaintiff’s Motion for Leave to Amend pursuant to Local Rule 7.1(c)(1). The
Court granted Plaintiff’s unopposed Motion pursuant to Rule 15 of the Federal Rules of Civil
Procedure. See Dkt. No. 50 at 2 (citing FED. R. CIV. P. 15(a)(2), which notes that a “court should
freely give leave when justice so requires.”). In so doing, the Court noted that “[t]he Sixth
Circuit has found that ‘[t]he decision as to when ‘justice requires’ an amendment is within the
discretion of the trial judge.’” Id. (citing Head v. Jellico Hous. Auth., 870 F.2d 1117, 1123 (6th
Cir. 1989). Moreover, the Court noted that any subsequent case filed by Plaintiff with the new
defendant would be a companion case. Id.
III. LEGAL STANDARD
Motions for Reconsideration are governed by Local Rule 7.1(g)(3) of the Local Rules of
the United States District Court for the Eastern District of Michigan, which provides:
[M]otions for rehearing or reconsideration which merely present the same issues
ruled upon by the court, either expressly or by reasonable implication, shall not be
granted. The movant shall not only demonstrate a palpable defect by which the
court and the parties have been misled but also show that a different disposition of
the case must result from a correction thereof.
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E.D. Mich. L.R. 7.1(g)(3). “A ‘palpable defect’ is ‘a defect that is obvious, clear, unmistakable,
manifest, or plain.’” United States v. Lockett, 328 F. Supp. 2d 682, 684 (E.D. Mich. 2004)
(quoting United States v. Cican, 156 F. Supp. 2d 661, 668 (E.D. Mich. 2001)).
IV. DISCUSSION
The Court will deny Defendant’s Motion because Defendant points out no defect in this
Court’s decision to grant the Plaintiff’s Motion for Leave to Amend the Complaint. Indeed, after
failing to file a Response to Plaintiff’s Motion, Defendant presents none of the typical arguments
to explain why this Court erred in granting the Motion for Leave to Amend. For example,
Defendant has not indicated that there has been any “undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the amendment, futility of
amendment, etc.” Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962).
Arguably, Defendant has attempted to argue that it would be futile to amend the
complaint. Defendant started its Motion for Reconsideration by indicating that this “court MAY
have been misled and correcting that defect will result in a different disposition of the Court’s
order.” Dkt. No. 53 at 2. Specifically, Defendant believed there was a written Joint Venture
Agreement between Plaintiff and HT Wire & Cable Americas that contained a forum selection
clause which would require this case to be brought in China. See id.
However, Plaintiff responded noting that the Joint Venture Agreement “is no longer in
effect, and did not name Plaintiff or HT Wire as parties.” Dkt. No. 61 at 9. Plaintiff attached the
Joint Venture Agreement and indicated that “the Agreement was between Huatong and two of
Plaintiff's sister corporations, Furukawa Electric Industrial Cable Co. Ltd. and Shenyang
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Furukawa Cable Co. Ltd.” Id. Specifically, Plaintiff noted that “[t]he Joint Venture Agreement
does not relate to Plaintiff or Plaintiff's business, and has nothing to do with this lawsuit.” Id.
After receiving the Joint Venture Agreement, Defendant failed to properly put forth an
argument explaining why amending the Complaint would have been futile. “A proposed
amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.”
Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (emphasis added). But
rather than attempting to explain that the proposed amendment was futile, Defendant seeks the
outright dismissal of this entire matter after putting forth what is essentially a Motion to Dismiss
in his Reply for the Motion for Reconsideration. See Dkt. No. 64 at 8 (seeking “an Order of
Dismissal in this matter and order the matter to arbitration in China[.]”).
The scope of Defendant’s Motion for Reconsideration is too broad. Moreover, the Court
is not persuaded that Defendant has demonstrated a palpable defect by which the court and the
parties have been misled. Defendant does not dispute that Plaintiff was “never a party to the Joint
Venture Agreement.” Dkt. No. 64 at 6. Instead, Defendant simply argues that the “inquiry does
not stop merely because Plaintiff may not [be] a signatory to the agreement” Id. The inquiry does
end there, however, as that was the scope of Defendant’s Motion. See Dkt. No. 53 at 2.
Defendant brought this Motion because it believed the Court was misled because there
was supposedly a written Joint Venture Agreement between Plaintiff and HT Wire & Cable
Americas that contained a forum selection clause which would require this case to be brought in
china. See id. However, the Joint Venture Agreement is not between Plaintiff and HT Wire &
Cable Americas. Defendant is instead asking this Court to “take a global view of the law,” read
such a provision into a joint venture agreement, and dismiss this case. See Dkt. No. 64 at 3-4.
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Such a request is beyond the scope of Plaintiff’s Motion for Leave to Amend and Defendant’s
Motion for Reconsideration.
Thus, Defendant’s Motion for Reconsideration fails in two ways: first, as an effort to cure
its previous failure to file a Response to Plaintiff’s Motion for Leave to Amend; and second, as
an improper and thinly veiled motion to dismiss via the Reply brief. Critically, nothing is
preventing the Defendant from properly challenging the amended complaint and raising the
arguments about the alleged forum selection clause. However, Defendant has failed to point out
how this Court erred by granting the Motion for Leave to Amend. This is particularly so given
this Court’s discretion to grant leave to amend, and the fact that, “in the absence of any apparent
or declared reason” by Defendant, leave should be “freely given”. Foman v. Davis, 371 U.S. at
182, 83 S. Ct. 227, 9 L. Ed. 2d 222; id. (“If the underlying facts or circumstances relied upon by
a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his
claim on the merits.”); FED. R. CIV. P. 15(a)(2).
IV. CONCLUSION
Accordingly, for the reasons discussed herein, the Court HEREBY DENIES
Defendant’s “Motion for Reconsideration as to Order Granting Plaintiff’s Motion to Amend
Complaint” [53]. The Court also HEREBY DENIES Furukawa’s “Motion for Leave to File SurReply Brief in Opposition to Defendant’s Motion for Reconsideration as to Order Granting
Plaintiff’s Motion to Amend Complaint” [70] as MOOT.
IT IS SO ORDERED.
Dated: September 24, 2015
/s/ Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge
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