High 5 Sportswear, Inc. v. High 5 Gear, Inc.

Filing 18

ENTRY AND ORDER GRANTING DEFENDANT'S MOTION FOR SUBSTITUTION OF TRIAL ATTORNEY (DOC. 13 ); GRANTING DEFENDANT'S MOTION FOR LEAVE TO FILE THIRD PARTY COMPLAINT(DOC. 14 ); GRANTING MOTION TO AMEND THIRD-PARTY COMPLAINT (DOC. 17 ); GRANTING PLAINTIFF'S MOTION TO EXTEND TIME TO RESPOND TO MOTION TO DISMISS (DOC. 15 ); AND SETTING BRIEFING SCHEDULE ON PLAINTIFF'S MOTION FOR LEAVE TO CONDUCT LIMITED JURISDICTIONAL DISCOVERY (DOC. 16 ) : Defendant is ordered to file the First A mended Third-Party Complaint (Doc. 17 -1) and its exhibits in the Courts docket by no later than March 1, 2016; Plaintiff's deadline to respond to the Motion to Dismiss (Doc. 9 ) is STAYED pending the Court's decision on the Motion for L eave to Conduct Limited Jurisdictional Discovery (Doc. 16 ); Defendant shall file its response to the Motion for Leave to Conduct Limited Jurisdictional Discovery by no later than March 1, 2016; o Plaintiff shall file its reply to Defendant's response within 7 days of service,but no later than March 8, 2016. Signed by Judge Thomas M. Rose on 2/25/16. (ep)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
HIGH 5 SPORTSWEAR, INC.,
Plaintiff,

Case No. 3:15-cv-401
Judge Thomas M. Rose

v.
HIGH 5 GEAR, INC.,
Defendant.
______________________________________________________________________________
ENTRY AND ORDER GRANTING DEFENDANT’S MOTION FOR
SUBSTITUTION OF TRIAL ATTORNEY (DOC. 13); GRANTING
DEFENDANT’S MOTION FOR LEAVE TO FILE THIRD PARTY COMPLAINT
(DOC. 14); GRANTING MOTION TO AMEND THIRD-PARTY COMPLAINT
(DOC. 17); GRANTING PLAINTIFF’S MOTION TO EXTEND TIME TO
RESPOND TO MOTION TO DISMISS (DOC. 15); AND SETTING BRIEFING
SCHEDULE ON PLAINTIFF’S MOTION FOR LEAVE TO CONDUCT
LIMITED JURISDICTIONAL DISCOVERY (DOC. 16)
______________________________________________________________________________
This case is before the Court on the Motion for Substitution of Trial Attorney (Doc. 13),
Motion for Leave to File Third Party Complaint (Doc. 14), and Motion to Amend Third-Party
Complaint (Doc. 17) filed by Defendant H5G, LLC (“Defendant”); and the Motion to Extend
Time to Respond to Motion to Dismiss (Doc. 15) and Motion for Leave to Conduct Limited
Jurisdictional Discovery (Doc. 16) filed by Plaintiff High 5 Sportswear, Inc. (“Plaintiff”). The
Court addresses each of these motions in turn below.
I.

DEFENDANT’S MOTION FOR SUBSTITUTION OF TRIAL ATTORNEY
Defendant moves to substitute its trial attorney under S.D. Ohio Civ. R. 83.4(a) and (c)(2).

(Doc. 13.) Defendant’s current trial attorney is Kevin M. Norchi of Norchi Forbes LLC in
Cleveland, Ohio. Mr. Norchi is a permanent member in good standing of the bar of this Court,
which is one of the requirements to serve as a trial attorney in this District. S.D. Ohio Civ. R.

83.4(a). Defendant has determined that its interests would be most effectively represented,
however, if Mr. Norchi were to serve as its Ohio local counsel and Joseph Kromholz of Ryan
Kromholz & Manion, S.C. in Milwaukee, Wisconsin were to serve as its trial attorney. (Doc. 13
at 6.) Mr. Kromholz is not a permanent member of the bar of this Court, but was admitted pro hac
vice to represent Defendant in this case. Defendant believes that Mr. Kromholz should serve as
its trial attorney due to his expertise in the area of intellectual property law. (Id.) Under S.D.
Ohio Civ. R. 83.4(a), the Court may, in its discretion and upon motion showing good cause, permit
an attorney admitted pro hac vice to act as a trial attorney.
As Defendant has shown good cause for the substitution of Mr. Kromholz for Mr. Norchi
as its designated trial attorney, the Court GRANTS the Motion for Substitution of Trial Attorney
(Doc. 13.).

However, the Court does so on the condition that Defendant continues to be

represented in this case by either Mr. Norchi or another permanent member of the bar of this Court,
in addition to Mr. Kromholz.
II.

DEFENDANT’S MOTION FOR LEAVE TO FILE THIRD PARTY
COMPLAINT AND MOTION TO AMEND THIRD-PARTY COMPLAINT
Defendant moves for leave to file a Third-Party Complaint naming Selective Insurance

Group, Inc. as a third-party defendant. (Doc. 14.) Under Federal Rule of Civil Procedure
14(a)(1):
A defending party may, as third-party plaintiff, serve a summons and complaint on
a nonparty who is or may be liable to it for all or part of the claim against it. But
the third-party plaintiff must, by motion, obtain the court’s leave if it files the
third-party complaint more than 14 days after serving its original answer.
Defendant filed its proposed Third-Party Complaint (Doc. 14-1) on February 5, 2016, within 14
days of when it filed its Answer (Doc. 8) on January 22, 2016. In the Third-Party Complaint,
Defendant alleges that Selective Insurance Group, Inc. is liable for “all or part of the claim” against
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it. Fed. R. Civ. P. 14(a)(1). Thus, Defendant did not need to seek leave of Court to file the
Third-Party Complaint under Rule 14(a)(1).
On February 24, 2016, Defendant filed a Motion to Amend Third-Party Complaint (Doc.
17), which requests leave to substitute Selective Insurance Company of America for Selective
Insurance Group, Inc., as the third-party defendant. Defendant explains that substitution is
appropriate because Selective Insurance Company of America has been identified as the true party
in interest in the insurance coverage dispute alleged in the Third-Party Complaint. (Doc. 17 at 1.)
In addition, Selective Insurance Group, Inc., has consented to the substitution requested in the
Motion to Amend Third-Party Complaint. (Id.)
Under Federal Rule of Civil Procedure 15(a)(1)(A), a party may amend a complaint once
“as a matter of course” within 21 days after service. Defendant has not served the Third-Party
Complaint.

As a result, the 21-day time period for Defendant to amend the Third-Party

Complaint once as a matter of course has not begun to run. Defendant’s request to amend the
Third-Party Complaint to name the proper third-party defendant is also consistent with the goal of
securing a just, speedy and inexpensive determination of every action. Fed. R. Civ. P. 1.
Defendant’s Motion for Leave to File Third-Party Complaint (Doc. 14) and Motion to
Amend Third-Party Complaint (Doc. 17) are GRANTED. Defendant is ORDERED to file the
First Amended Third-Party Complaint (Doc. 17-1) and its exhibits in the Court’s docket by no
later than March 1, 2016.
III.

PLAINTIFF’S MOTION TO EXTEND TIME TO RESPOND TO MOTION TO
DISMISS AND MOTION FOR LEAVE TO CONDUCT LIMITED
JURISDICTIONAL DISCOVERY
On February 12, 2016, Plaintiff filed a Motion to Extend Time to Respond to Motion to

Dismiss (Doc. 15) and a Motion for Leave to Conduct Limited Jurisdictional Discovery (Doc. 16).
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Defendant’s Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue, or in the
Alternative, to Transfer Venue (Doc. 9) is the “Motion to Dismiss” that Plaintiff refers to in its
motion to extend time to respond. Plaintiff’s deadline to respond to the Motion to Dismiss was
February 12, 2016.
Plaintiff asks that the Court grant the Motion for Leave to Conduct Limited Jurisdictional
Discovery, provide Defendant 30 days to respond to Plaintiff’s discovery requests, and provide
Plaintiff 30 days to review the discovery produced by Defendant and prepare its response to the
Motion to Dismiss.

(Doc. 15.)

The Motion for Leave to Conduct Limited Jurisdictional

Discovery has not been fully briefed, however, and therefore the Court is not in a position to rule
on that motion or set a briefing schedule on the Motion to Dismiss.
In light of the outstanding motions and to avoid undue delay, the Court will grant an
extension of Plaintiff’s deadline to respond to the Motion to Dismiss to accommodate an
accelerated briefing schedule on the Motion for Leave to Conduct Limited Jurisdictional
Discovery. Accordingly, Plaintiff’s deadline to respond to the Motion to Dismiss is STAYED
pending the Court’s decision on the Motion for Leave to Conduct Limited Jurisdictional
Discovery. Defendant shall file its response to the Motion for Leave to Conduct Limited
Jurisdictional Discovery by no later than March 1, 2016.

Plaintiff shall file its reply to

Defendant’s response within 7 days of service, but no later than March 8, 2016. The Court will
set a deadline for Plaintiff’s response to the Motion to Dismiss in its decision on the Motion for
Leave to Conduct Limited Jurisdictional Discovery.
IV.

CONCLUSION
For the reasons stated above, the Court rules as follows:


The Motion for Substitution of Trial Attorney (Doc. 13) is GRANTED on the
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condition that Defendant continues to be represented in this case by either Mr.
Norchi or another permanent member of the bar of this Court, in addition to Mr.
Kromholz;


The Motion for Leave to File Third-Party Complaint (Doc. 14) and Motion to
Amend Third-Party Complaint (Doc. 17) are GRANTED;

Defendant is

ORDERED to file the First Amended Third-Party Complaint (Doc. 17-1) and its
exhibits in the Court’s docket by no later than March 1, 2016;


The Motion to Extend Time to Respond to Motion to Dismiss (Doc. 15) is
GRANTED; Plaintiff’s deadline to respond to the Motion to Dismiss (Doc. 9) is
STAYED pending the Court’s decision on the Motion for Leave to Conduct
Limited Jurisdictional Discovery (Doc. 16); and



The briefing schedule on Plaintiff’s Motion for Leave to Conduct Limited
Jurisdictional Discovery is MODIFIED as follows:
o Defendant shall file its response to the Motion for Leave to Conduct
Limited Jurisdictional Discovery by no later than March 1, 2016;
o Plaintiff shall file its reply to Defendant’s response within 7 days of service,
but no later than March 8, 2016.

DONE and ORDERED in Dayton, Ohio, this Thursday, February 25, 2016.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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