Toho Tenax America, Inc. v. Linde, Inc. (TV2)

Filing 77

MEMORANDUM OPINION AND ORDER: Teijin's motion to stay discovery is herebyDENIED. Teijin is ORDERED to submit any evidence in reply to Linde's response toTeijin's Rule 12(b)(2) motion within fourteen (14) days of the entry of this order. Signed by Chief District Judge Thomas A Varlan on 6/09/2014. (KMK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
TOHO TENAX AMERICA, INC.,
Plaintiff,
v.
LINDE, INC.,
Defendant.

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No.:

3:12-CV-157-TAV-HBG

MEMORANDUM OPINION AND ORDER
This civil action is before the Court on Third Party Defendant Toho Tenax Co.,
Ltd.’s Motion to Dismiss the Third Party Complaint [Doc. 47] and Third Party Defendant
Teijin, Ltd.’s Motion to Dismiss the Third Party Complaint [Doc. 49]. Following the
filing of these motions to dismiss, defendant and third-party plaintiff Linde, Inc.
(“Linde”) filed a Motion to Amend Third-Party Complaint [Doc. 51], to which Toho
Tenax Co., Ltd. (“TTJ”) and Teijin, Ltd. (“Teijin”) jointly responded in opposition [Doc.
67], and Linde replied [Doc. 72].1 Linde also responded in opposition to TTJ and
Teijin’s motions to dismiss [Docs. 52, 53], to which TTJ and Teijin replied [Docs. 60,
61]. Further, Linde filed sur-replies [Docs. 68, 69], to which TTJ and Teijin responded
[Docs. 73, 74].

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Notably, Linde states in its motion to amend that previously named third-party
defendant Teijin, Co., Ltd. is not included in the proposed second amended third-party complaint
because it does not appear to be a proper party to this matter.

In their motions to dismiss, TTJ and Teijin argue for dismissal pursuant to Federal
Rule of Civil Procedure 12(b)(2) on the basis that the Court lacks personal jurisdiction
over them and Federal Rule of Civil Procedure 12(b)(6) on the basis that Linde fails to
state a claim for relief [Docs. 47, 49]. As is pertinent to this order, Linde responded in
opposition to the argument that the Court lacks personal jurisdiction over it, citing as
support excerpts from the deposition of Robert M. Klawonn, the president of Toho Tenax
America, Inc. (“TTA”) [Doc. 55].2 See Hilani v. Greek Orthodox Archdiocese of Am.,
863 F. Supp. 2d 711, 718 (W.D. Tenn. 2012) (“A plaintiff may not stand on his pleadings
but must, by affidavit or otherwise, set forth specific facts showing that the Court has
jurisdiction.”). Teijin requests permission to submit evidence outside of the pleadings in
response, and the Court will allow it to do so. Id. (stating that “[i]n considering a
properly-supported Rule 12(b)(2) motion, the Court may proceed in three ways: ‘it may
decide the motion upon the affidavits alone; it may permit discovery in aid of deciding
the motion; or it may conduct an evidentiary hearing to resolve any apparent factual
questions’” (quoting Intera Corp. v. Henderson, 428 F.3d 605, 614 n. 7 (6th Cir. 2005))).
The Court declines to grant an evidentiary hearing without having received documentary
evidence in support of each party’s position.
Teijin also moves that the Court stay all non-jurisdictional discovery directed to
Teijin until the Court rules upon the issue of personal jurisdiction, citing Federal Rule of
Civil Procedure 26(c), which concerns protective orders [Doc. 74 pp. 4–5]. In support,
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TTJ abandoned its personal jurisdiction argument in light of this deposition excerpt
[Doc. 60 p. 2].
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Teijin submits that Linde has served it with requests for admission, interrogatories, and
requests for production of documents and that, as a foreign company, it would be
burdened by having to respond to these items before the Court determines whether it has
jurisdiction over Teijin [Id. at 4].
The Court notes that “the scope of discovery is within the sound discretion of the
trial court.” Emmons v. McLaughlin, 874 F.2d 351, 356 (6th Cir. 1989). Rule 26(c)
permits the Court to enter a protective order staying discovery upon a showing of good
cause. In re First Energy S’holder Derivative Litig., 219 F.R.D. 584, 587 (N.D. Ohio
2004). “The party moving for the protective order bears the burden of showing good
cause.” Id. The Court does not find that Teijin has shown that the burden of having to
respond to Linde’s requests for admission, interrogatories, and requests for production of
documents constitutes good cause for halting all non-jurisdictional discovery as to Teijin
pending the Court’s ruling on its personal jurisdiction argument.
Notably, “the fact that a party has filed a case-dispositive motion is usually
deemed insufficient to support a stay of discovery.” Bowens v. Columbus Metro. Library
Bd. of Trustees, No. CIV.A. 2:10-CV-00219, 2010 WL 3719245, at *2 (S.D. Ohio Sept.
16, 2010). Moreover, it strikes the Court that discovery bearing upon the merits of this
dispute may also be relevant to the issue of jurisdiction. For example, Teijin argues that
it was insufficiently involved in the decision to close the TTA lines of production for this
Court to assert jurisdiction or for Linde to assert a valid claim against it. As the Court
endeavors to determine whether Teijin is subject to this Court’s jurisdiction, Teijin’s
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responses to what it deems non-jurisdictional discovery may prove relevant. And finally,
when making a motion under Rule 26(c), a party “must include a certification that the
movant has in good faith conferred or attempted to confer with other affected parties in
an effort to resolve the dispute without court action.” Fed. R. Civ. P. 26(c). Teijin’s
request for Rule 26(c) relief does not include such a certification, and in fact, because
Teijin made this request in its response to Linde’s sur-reply, Linde has not responded to
this request. In light of the foregoing, the Court will deny Teijin’s motion to stay
discovery.
For the reasons stated herein, Teijin’s motion to stay discovery is hereby
DENIED. Teijin is ORDERED to submit any evidence in reply to Linde’s response to
Teijin’s Rule 12(b)(2) motion within fourteen (14) days of the entry of this order.
IT IS SO ORDERED.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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