Schrader v. Henningsen Foods et al

Filing 112

MEMORANDUM AND ORDER - Plaintiffs' motions to reconsider (Filing No. 79 in 8:09CV33 and Filing No. 37 in 8:09CV170) are denied; and Plaintiff Schrader's motion to amend the progression order (Filing No. 67 in 8:09CV33) is denied as moot. Member Cases: 8:09-cv-00033-JFB-TDT, 8:09-cv-00170-JFB-TDT Ordered by Chief Judge Joseph F. Bataillon. (JAB)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA AMY SCHRADER, Plaintiff, v. HENNINGSEN FOODS, INC., and Q.P. CORPORATION, Defendants. _______________________________ DIANE MORBACH, Plaintiff, v. HENNINGSEN FOODS, INC., and Q.P. CORPORATION, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

8:09CV33

8:09CV170

MEMORANDUM AND ORDER

This matter is before the court on the respective plaintiffs' motions to reconsider and strike. Filing No. 79 in 8:09CV33 and Filing No. 37 in 8:09CV170.1 Plaintiffs seek reconsideration of the court's orders dismissing defendant Q.P. Corporation ("QP") for lack of personal jurisdiction, Filing No. 78 in 8:09CV33 and Filing No. 36 in 8:09CV170. Plaintiffs contend that they did not respond to the defendants' motions to dismiss through oversight in the Morbach case and because they had moved to amend a progression order in the Schrader case. They now seek an opportunity to respond. In support of the motions to dismiss, defendants presented the declaration of Katsuhiko

Also pending is a m o tio n to am e n d the progression order, Filing No. 67 in 8:09CV33. The m o tio n w ill be rendered m o o t by this decision and will be denied.

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Sasaki to show that QP did have the requisite minimum contacts with Nebraska to be subject to suit in this jurisdiction. See Filing No. 78 in 8:09CV33, Memorandum and Order at 6; Filing No. 36 in 8:09CV109, Memorandum and Order at 6. Plaintiffs did not respond to QP's showing, instead moving in the Schrader case to strike the pleading and arguing that QP's evidence was beyond the scope of the motion because Rule 12 motions address the sufficiency of pleadings. Id. at 2 in 8:09CV33. The court stayed discovery with respect to defendant QP, pending disposition of the motion. Filing No. 63 in 8:09CV33. Plaintiff Schrader moved to amend the progression order, asking the court to lift the stay to permit discovery "of information and matter relevant and probative of the relationship" between defendants Henningsen Foods, Inc. ("Henningsen") and QP. Filing No. 68 in 8:09CV33, Brief at 1. Defendant Henningsen opposed the motion. Filing No. 70, in 8:09CV33, Brief. QP moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(2). Under subsection (b)(2), supporting affidavits or declarations are allowed, as the court noted in the Memorandum and Order. See Fed. R. Civ. P. 12(d); see also Filing No. 78 in 8:09CV33, Memorandum and Order at 3. Notably, discovery had been stayed with respect to defendant QP only, not with respect to defendant Henningsen, which presumably would also have been in possession of information relevant to its relationship with its parent corporation, QP. The plaintiffs had an opportunity to obtain and present evidence in opposition to the motion, but failed to do so. The filing of a motion to amend the progression order does not relieve a party of the obligation to respond to a motion, especially on an issue on which that party bears the burden of proof. Plaintiffs have not refuted the evidence presented by defendant QP. The court stands by its earlier finding. "There is a `strong presumption that a parent company is not the employer of its subsidiaries' employees, and the courts have found
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otherwise only in extraordinary circumstances." See Brown v. Fred's Inc., 494 F.3d 736, 739 (8th Cir. 2007). Accordingly, IT IS ORDERED: 1. Plaintiffs' motions to reconsider (Filing No. 79 in 8:09CV33 and Filing No. 37 in 8:09CV170) are denied; and 2. Plaintiff Schrader's motion to amend the progression order (Filing No. 67 in 8:09CV33) is denied as moot. DATED this 8th day of April, 2010. BY THE COURT:

s/ Joseph F. Bataillon Chief District Judge

*This opinion m a y contain hyperlinks to other docum e n ts or W e b sites. The U.S. District Court for th e District of Nebraska does not endorse, recom m e n d , approve, or guarantee any third parties or the services o r products they provide on their W e b sites. Likewise, the court has no agreem e n ts with any of these third p a r tie s or their W e b sites. The court accepts no responsibility for the availability or functionality of any h yp e r lin k . Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect t h e opinion of the court. 3