United States District Court, N.D. Iowa, Western Division
Soo TRACTOR SWEEPRAKE CO., d/b/a RADIUS STEEL FABRICATION a Division of Soo Tractor, Plaintiff,
GAVIN/SOLMONESE LLC, TED GAVIN, Individually, and STEPHEN KUNKEL, Defendants.
ORDER GRANTING PLAINTIFF'S RESISTED MOTION FOR
LEAVE TO SECURE DEPOSITIONS
Williams Chief United States Magistrate Judge.
the Court is plaintiff's Motion For Leave To Secure
Depositions Regarding Resistance to Defendants' Motion to
Dismiss (Doc. 11). Defendants timely resisted. (Doc. 18).
Plaintiff replied. (Doc. 23). For the reasons that follow,
plaintiff's motion is granted.
filed its complaint on January 19, 2017, in this Court
pursuant to diversity jurisdiction. (Doc. 1). Plaintiff
alleges counts one through six as follows: (1) breach of
contract; (2) breach of fiduciary duty; (3) negligent hiring;
(4) negligent retention; (5) negligent supervision; and (6)
intentional interference with contract. (Id.).
February 21, 2017, defendants filed a motion to dismiss
alleging lack of subject-matter jurisdiction. (Doc. 6). On
March 6, 2017, plaintiff moved for an extension of the
deadline to file its resistance to defendants' motion to
dismiss from March 7, 2017, to March 14, 2017. (Doc. 9). This
motion was unresisted and the Court granted it. (Doc. 10).
to its deadline to file a resistance to the motion to dismiss
(March 14, 2017), plaintiff filed a motion for leave to
secure depositions. (Doc. 11). Specifically, plaintiff seeks
leave to depose Michael Kayman and Lin Boatwright in the week
of March 13th or alternatively as soon as possible
to prepare an “appropriate” resistance. In
response, on March 10, 2017, defendants filed a Notice of
Intent to File Resistance to Plaintiff's Motion For Leave
to Secure Depositions. (Doc. 12). Defendants filed this
Notice of Intent out of concern that although plaintiff's
motion did not ask for expedited relief under Local Rule
7(j), plaintiff is seeking leave to take depositions in the
week of March 13thprior to the deadline for
defendants' resistance to the instant motion
(defendants' deadline for resistance was March 22, 2017).
Defendants ask the Court to “reserve ruling on
Plaintiff's Motion for Leave to Secure Depositions until
such time as Defendants are permitted to submit their
resistance.” (Id.). Such concern is moot.
Defendants have already timely resisted. (Doc. 18). Lastly,
plaintiff filed a reply brief. (Doc. 23).
timely resistance to defendants' motion to dismiss,
plaintiff asks the Court to deny the motion to dismiss,
schedule an evidentiary hearing, and “grant Plaintiff
permission to supplement this Resistance in light of the
anticipated depositions of Michael Kayman and Lin Boatwright
(See Doc. 11), and any other relief the Court deems
appropriate.” (Doc. 13, at 1-2).
Eighth Circuit Court of Appeals has reasoned that
jurisdictional discovery is warranted when “certain
facts necessary to resolving the jurisdictional inquiry are
either unknown or disputed.” Viasystems, Inc. v.
EBM-Papst St. Georgen GmbH & Co., KG, 646 F.3d 589,
598 (8th Cir. 2011) (citation omitted). Jurisdictional
discovery is unwarranted when the movant only provides
“entirely speculative” assertions regarding what
facts jurisdictional discovery “would likely
reveal.” Id. (quotations and citations
omitted). As the Honorable Senior Judge Mark W. Bennett
[T]he Eighth Circuit Court of Appeals has identified several
factors that are relevant to the determination of whether or
not to allow jurisdictional discovery: Courts look to
decisions under Rule 56 for guidance in determining whether
to allow discovery on jurisdictional facts. To request
discovery under [ ] Rule 56(d), a party must file an
affidavit describing: (1) what facts are sought and how they
are to be obtained; (2) how these facts are reasonably
expected to raise a genuine issue of material fact; (3) what
efforts the affiant has made to obtain them; and (4) why the
affiant's efforts were unsuccessful.
F.D.I.C. v. Dosland, 50 F.Supp.3d 1070, 1077 (N.D.
Iowa 2014) (quoting Johnson v. U.S., 534 F.3d 958,
965 (8th Cir. 2008)). Judge Bennett succinctly stated the
movant's burden as needing to “explain how the
evidence it seeks will raise a genuine issue of material fact
relevant to subject matter jurisdiction.” Id.
cites Osborn v. United States, 918 F.2d 724, 730
(8th Cir. 1990) for the proposition that defendants'
motion to dismiss [for lack of subject-matter] “attacks
the factual basis of the Complaint, the Court must hold an
evidentiary hearing on the issue.” (Doc. 11, at 2).
Plaintiff concludes that “[s]ince the Court must decide
the jurisdiction issue, and an evidentiary hearing is
likely to occur, Plaintiffs [sic] contend securing the
depositions [ ] is appropriate and necessary, and the
depositions need to be taken at the earliest possible
opportunity.” (Id.) (emphasis added).
seeks to depose two individuals. First, plaintiff wants to
depose Michael Kayman, manager of Soo Tractor LLC. Soo
Tractor LLC was the buyer in the Asset Purchase Agreement
(APA) at issue where plaintiff (Soo Tractor Sweeprake Co.)
was the seller. Mr. Kayman would represent the viewpoint from
the non-party buyer, Soo Tractor LLC. Plaintiff ...