UNREPGRTED CASES
Case 1.05-cv-00292-JJF Document 216-2 Filed 06/12/2006 Page 2 of 4
Westlaw ‘
Not Reported in F.Supp.2d ‘ Page I
Not Reported in F.Supp.2d, 2005 WL 44062l (D.Del.)
(Cite as: 2005 WL 440621 (D.Del.)) _
BACKGROUND
Plaintiff Jurimex Kommerz Transit G.l\/I.B.I·I is
n,lnnnnS_ l>lendnn,S nnll plllnns incorporated in and has its principal place of business
in Austria. It is a commodities and machinery broker
Only the Weellnw enenen ls Currently nVellnele_ that specializes in brokering deals between business
concems in Eastern Europe and those in Western
I Europe and the United States.
United States District Coun,
D_ l)elnwlne_ Plaintiff Jurimex Koinmerz Transit Agrar is
JTJRIMEX KGMMERZ TRANSU G_M_lg_l.l_; _ incorporated and has its principal place of business in
ln,-nnen Kennnerz elelensn Aglnn and Al-ge lpC_ Austria. It is a corporation established by Jurimex
lnlnnexl Plaintiffs, Komnierz Transit G.M.B.H for the purpose of
(,_ entering into a partnership with a company called IP
CASE CORPORATION, Defendant. C0u$ull·
N0. Civ.A. 00-083 JJF.
Plaintiff Arge IPC-Jurimex is a partnership formed
Feb. lg: 2g()5_ under the laws of Austria for the purpose of
rnoinns Ce_Grimin, of Monis, Nichols, Arsht a rei¤reee¤li¤g Dete¤
Daniel A. Cohen, and greg, of Kornstein `\/eisz connection with the sale of combines to Agro
Wexley ge pellenx LLl:•_ Neyer York, Ncyy Yelle {er Industrial Corporation Golden Grain, Ltd. ("Golden
plelnnlrfa Of eennSel_ I I Grain"), a company in Kazakhstan.
Dnvnl C lolelgnllel lelln w_ gnnwa and Dnwn M_ Defendant Case is a Delaware corporation with its
logngg, of Young, Conaway, Stargatt & Taylor, LLP, pflllcipal place of business in Racine, Wisconsin,
Wilmington, Delaware, William E. Deitriclt, and
iviioiioiie v. Doino, ofMayer, Brown, Rowe aiview, Oil February 0i 2000, l¤ri¤¤e>< tiled e Cemi¤lel¤t
Chicago, Illinois, ropnereiionnt, of counsel. (Dill alleging ¤l¤e ele-lies egeirlel Case fer breech
of a contract. Jurimex contends that Case cut Iuriinex
MEMORANDUM OPIAIION out ofthe transaction with Golden Grain, wrongfully
depriving Jurimex of no less than $43 million in
l¤Alqg\lAN_ l_ commissions and lost profits.
*1 Presently before me is the Motion To Compel Ou Aplll lei, 2OOO» Cust? llleu el ll/letie¤ Te Dlsullus
Deposition resiiniony (D.l.92) area by Plaintiffs
- Jurimex Kommerz Transit G.M.B.l·I, Jurimex But 2000
Kommerz Transit Agrar, and Arge IPC—Jurimex
leelleenvelyl ··lnn,neX··l_ On August 2I, 2000, Case moved for a protective
order, which I granted after a teleconference on
Defendant Case ljennelenen (llcasell) eenlends lnel September I3, 2000. I stated that I would leave any
there ls else e pending issue ef fO,.n,n non discovery motions pending while I decided Case‘s
conveniens. However, in its papers, Case continues to Mllllllu Te Dlsullsu
refer to D.I. I3 for this issue. D.I. I3 was Defendant’s
original Motion To Disniiss, which I granted. The Ou lulY Y-3i 200li l issued uu Ot0e¤‘
ronnni inoiion to dismiss pending at tins time. l¤ tlle eeeeeleted Memeremlum Opluien (D1-43>, l
dismissed the complaint pursuant to Rule I2(b)(7)
For the reasons discussed, Iurimex‘s Motion To uml Rule l9· l held tllel Cuscls Suuslulullus me
Compel Deposition resiiinony (Dl.92) wiii be rleeeeeery perllee under Rule l9
grantedln pen nnd Clenledln nen-L interactions were almost entirely with Case‘s
subsidiaries, and not with the Case defendant.
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Case 1:05-cv-00292-JJF Document 216-2 Filed 06/12/2006 Page 3 of 4
Not Reported in F.Supp.2d Page 2
Not Reported in F.Supp.2d, 2005 WL 440621 (D.Del.)
(Cite as: 2005 WL 440621 (D.Del.)) _
Further, I held that joining the Case subsidiaries subsidiaries
would eliminate the basis of the Court's diversity
jurisdiction and warrant dismissal ofthe action under In the same Order (D1.93), I granted Defendants
Rule l2(b)(l). I did not address Defendant's forum Motion To Compel Answers To Requests To Admit
non conveniens arguments. and limited interrogatories to 50 for each side and
requests for admission to 50 for each side. Further, I
I subsequently denied as futile a Motion To File An ordered that discovery be limited in scope to
Amended Complaint (D.1.46) filed by Jurimex. Plaintiffs allegation of a principal-agency
Jurimex sought to add language proving agency relationship between Case and its subsidiaries
within the context of a parent-subsidiary relationship concerning the Golden Grain transaction.
on the part of Case.
On August 5, 2004, I heard Oral Argument with
*2 On March 26, 2002, Iurimex appealed these regard to Jurimex's Motion To Compel Deposition
decisions to grant Case's Motion To Dismiss and to - Testimony (D.I.92). The parties filed supplemental
deny .Iurimex's Motion To File An Amended documents supporting their positions (D.I.l06, 107).
Complaint. On June I4, 2002, Iurimex commenced
an action in state court in Racine, Wisconsin, during PARTIES' CONTENTIONS
the pendency ofthe Third Circuit appeal, in order to By its motion, Jurimex moves to compel Case to
toll any applicable statute of limitations. The produce for deposition a lied R. Civ. P. 30(b)(6l
Wisconsin court has stayed that action pending a corporate designee and two individual witnesses,
final determination of this Delaware action. Patrice Loiseleur and Gerard Chiffert. The topics in
the Rule 30tb)l6) deposition notice addressed to Case
The Third Circuit reversed the denial of Jurimex's concern (1) the Golden Grain" deal (topics 1-5, 7, 9,
Motion To File An Amended Complaint, citing {SJ; 10); (2) related business dealings between Case and
DUPO17/Dt?iVc?l72OL{/1TOHKICO. v. /€}1o11eRc:1.1/eiic Fiber Iurimex or Golden Grain (topics l, 3-5); (3) the
and Itasm lnzemzedinzes. 269 l*.3d IS7. 198 (Bd authority of Case's subsidiaries‘ employees to act for
C`ir.200l ). That case holds that "iojne corporation Case (topics 6-8, 10); and (4) Case's prior discovery
whose shares are owned by a second corporation responses (topic 9). Iurimex contends that Case
does not, by that fact alone, become the agent of the refuses to designate a witness for any noticed topic.
second company." Further, the Third Circuit held that Jurimex further contends that Patrice Loiseleur and
discovery is necessary when an agency relationship is Gerard Chiffert are executives of the subsidiaries
alleged. The Third Circuit affirmed 1ny granting of who have firsthand knowledge ofthe events at issue.
the Motion To Dismiss, stating it was doing so
because agency was never pled (D.I. 57 at 3). The *3 In response, Case contends that Iurimex's
Third Circuit made no mention of Case's forum non deposition notice seeks to improperly circumvent my
conveniens issue. prior ruling that Case's subsidiaries are indispensable
parties. Case further contends that Jurimex‘s
On remand, I allowed Juminex to file its Amended deposition notices improperly presume the existence
Complaint (D.I.46). The Amended Complaint asserts of a principal—agent relationship between Case and its
I _ claims against Case as joint tortfeasor by virtue of its subsidiaries. Specifically, Case contends that it is
agency relationship with its subsidiaries, Case now in the untenable position of producing witnesses
France, Case Europe, and Case Neustadt for (I) from non·parties to this lawsuit(i.e. the subsidiaries).
breach of contract and implied covenant of good faith Case further contends that Jurimex cannot serve
and fair dealing; (2) breach of implied contract; (3) deposition notices on it for specific individuals who
promissory estoppel; (4) quasi-contract/unjust are not officers, directors, or managing agents of
enrichment/restitution; (5) tortious interference; (6) Case Corp.
unfair competition and misappropriation; and (7)
prima facie tort. DISCUSSION
The Federal Rules of Civil Procedure allow for a
On June 23, 2004, I entered an Order (D.I.93) broad scope of discovery that is not limited to
granting .Iurimex's Motion To Compel Production Of admissible evidence, but evidence that is reasonably
Documents And Responses To Interrogatories calculated to lead to the discovery of admissible
(D.I.75). The Order compelled production of evidence. lTggl_,l§,QiygPL___&(lQ(l). l@g__ jigbjjgj
I documents and information concerning agreements provides that after receiving a notice of deposition,
negotiated on Case's behalf by its European the corporation should "designate one or more
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Case 1:05-cv-00292-JJF Document 216-2 Filed 06/12/2006 Page 4 of 4
Not Reported in F.Supp.2d Page 3
Not Reported in F.Supp.2d, 2005 WL 440621 (D.Del.)
(Cite as: 2005 WL 440621 (D.Del.)) _
officers, directors, Ior managing agents, or other issued this date,
persons who consent to testify on its behalf"
l*ed.R.Civ.P. 30§b)(6l. Additionally, the deponent has IT IS HEREBY ORDERED that the Motion To
a "duty of being knowledgeable on the subject matter Compel Deposition Testimony (DI92) tiled by
identified as the area of inquiry." A/emnder in Fed. Jurimex is GRANTED with regard to compelling for
Bureau og .lm=e.s·1ieurioiz. l86 PRD. 148. 151 deposition one or more corporate witnesses that
(D.D.C ,1Qi-QQ). satisfy the requirements of Federal Rule of Cixi
I Egtgedure 30Lb_)_(_@. The Motion To Compel
In this case, on appeal, the Third Circuit cited EJ; Deposition Testimony (D.I.92) is DENIED with
DuPont _g@_Ne1i1ou1a·_gg@__C_}g,_yg_/jjyggg Ron/ence leave to renew with regard to compelling the
E and Resin /nrgyniec/iore.s·. 269 P .3d1$7. 198 (3d depositions of Mssrs. Loiseleur and Chiffert.
QiL2QQ_l) for the proposition that, under Delaware
law, proof of agency within the context of a parent- Not Reported in F.Supp.2d, 2005 WL 440621
subsidiary relationship requires that the plaintiff · (D.Del.)
"demonstrate that the agent was acting on behalf of
the principal and that the cause of action arises out of Motions, Pleadings and Filings (Back to top)
that relationship," Further, the Third Circuit cited its
decision in C`c1nui··¢1ni·.Beneficiti/Fi/1c1nc·e Corp., 553 · 2005 WL 3666748 (Trial Motion, Memorandum
F.2d S60 (3d Cir.l977), for the proposition that and Affidavit) Plaintiffs Brief in Opposition to
"discovery is necessary when an agency relationship Defendant‘s Summary Judgment Motion (Oct. 28,
is alleged, thereby implicitly allowing allegations of 2005)
agency to survive a facial attack." The Third Circuit
did not discuss the forum non conveniens issue that · 2005 WL 2867858 (Trial Motion, Memorandum
Case contends is at issue. and Affidavit) Defendant Case Corporation's Brief in
Support of its Motion for Summary Judgment and
Thus, I conclude that Case must produce for Motion to Dismiss Based upon the Doctrine of
deposition one or more corporate witnesses that Forum Non Convendens (Sep. 29, 2005)
satisfy the requirements of Federal Rule of Civil
Procedure 30(b)(6t by being prepared to testify with · l:00C\!’000S3 (Docket) (Feb. 09, 2000)
knowledge of the subsidiaries and Case's relationship
with them. END OF DOCUMENT
With regard to compelling the depositions of Mssrs.
Loiseleur and Cltiffert, I will deny this part of the
motion with leave to renew after Jurimex deposes
Casc's designated 30(b)(6) witnesses.
CONCLUSION
For the reasons discussed, I conclude that Case has
. not satisfied its burden under Rule 30(b1(6).
Accordingly, the Motion To Compel Deposition
Testimony (D.I.92) tiled by Jurimex will be granted
to the extent that Case must produce for deposition
one or more corporate witnesses that satisfy the
requirements of Federal Rule of Civil Procedure
30lb)§6t. Further, the Motion To Compel Deposition
Testimony (DJ.92) will be denied with leave to
renew with regard to compelling the depositions of
Mssrs. Loiseleur and Chiffert.
*4 An appropriate Order will be entered.
ORDER
At Wilmington, this 18th day of February 2005, for
the reasons set forth in the Memorandum Opinion
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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