Marx Industries, Inc. v. Chestnut Ridge Foam, Inc.

Filing 12

ORDER granting with modification as described in Order 8 Motion for Limited Discovery. Dft shall make its appropriate representative(s) available for a deposition at a time agreeable to both parties on or before 1/20/2012 a nd at a location to be determined by dft. Plf may file a supplement to its response to dft's Mot/Dismiss on or before 1/31/2012 and dft may file a reply to any such supplement w/i 10 days of its filing. Signed by Magistrate Judge David Keesler on 12/8/2011. (cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:11-CV-139-RLV-DCK
MARX INDUSTRIES, INC.,

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Plaintiff,
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v.
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CHESTNUT RIDGE FOAM, INC.,
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Defendant.
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____________________________________)

ORDER

THIS MATTER IS BEFORE THE COURT on Plaintiff’s “Motion For Limited Discovery
In Order To Respond To Defendant’s Motion To Dismiss For Lack Of Jurisdiction” (Document No.
8). This motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b), and is now ripe for disposition. Having carefully considered the motion and the record, the
undersigned will grant the motion, with modification.
BACKGROUND
Plaintiff Marx Industries, Inc. (“Plaintiff”) filed its “Complaint” in this action on August 31,
2011, in the Superior Court of Caldwell County, North Carolina. (Document No. 1-1). Defendant
Chestnut Ridge Foam, Inc. (“Defendant”) filed its “...Notice Of Removal”on September 30, 2011,
thus removing the lawsuit to this Court. (Document No. 1). On October 7, 2011, “Defendant’s
Motion To Dismiss Pursuant To Fed. R. Civ. P. 12(b)(2) And 12 (b)(6)” (Document No. 3) was
filed. A response and reply to the “...Motion To Dismiss...” have been timely filed, and that motion
is ripe for disposition; however, along with its response Plaintiff also filed the instant “Motion For
Limited Discovery... (Document No. 8). The “Motion For Limited Discovery...” has been fully
briefed and is now ripe for disposition.

DISCUSSION
Plaintiff asserts that its response to the motion to dismiss “establishes sufficient factual and
legal basis that this Court has jurisdiction over Defendant Chestnut,” but Plaintiff also now seeks
the opportunity to conduct limited discovery to further evaluate Defendant’s contacts with North
Carolina. (Document No. 8). Defendant opposes Plaintiff’s request for discovery and describes the
request as a “fishing expedition.” (Document No. 10). In its reply to the instant motion, Plaintiff
acknowledges that its original request for discovery (Document No. 8-1) was “likely too much” and
suggests that the deposition of one (1) appropriately informed corporate designee prepared to discuss
jurisdictional facts and materials may be adequate. (Document No. 11).
The undersigned finds that some limited discovery on jurisdiction might assist the Court’s
consideration of the pending “...Motion To Dismiss...” (Document No. 3); as such, the Court will
allow Plaintiff’s motion, with modification. Specifically, Defendant shall designate one or more
persons who are adequately prepared to respond to Plaintiff’s discovery requests, as narrowed in
Document No. 11-1, during a deposition not to exceed five (5) hours, unless otherwise agreed by
the parties. All the information requested by Plaintiff shall be further narrowed to the time period
of January 1, 2007 through the present.
CONCLUSION
IT IS, THEREFORE, ORDERED that Plaintiff’s “Motion For Limited Discovery In
Order To Respond To Defendant’s Motion To Dismiss For Lack Of Jurisdiction” (Document No.
8) is GRANTED, with modification as described herein.
IT IS FURTHER ORDERED that Defendant shall make its appropriate representative(s)
available for a deposition at a time agreeable to both parties, on or before January 20, 2012, and
at a location to be determined by Defendant.
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IT IS FURTHER ORDERED that Plaintiff may file a supplement to its response to
“Defendant’s Motion To Dismiss...” (Document No. 3) on or before January 31, 2012, and
Defendant may file a reply to any such supplement within ten (10) days of its filing.
SO ORDERED.
Signed: December 8, 2011

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