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Soo Tractor Sweeprake Co v. Gavin/Solmonese LLC

United States District Court, N.D. Iowa, Western Division

April 4, 2017

Soo TRACTOR SWEEPRAKE CO., d/b/a RADIUS STEEL FABRICATION a Division of Soo Tractor, Plaintiff,
v.
GAVIN/SOLMONESE LLC, TED GAVIN, Individually, and STEPHEN KUNKEL, Defendants.

          ORDER GRANTING PLAINTIFF'S RESISTED MOTION FOR LEAVE TO SECURE DEPOSITIONS

          C.J. Williams Chief United States Magistrate Judge.

         I. INTRODUCTION

         Before 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.

         Plaintiff 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.).

         On 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).

         Prior 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.).[1] Such concern is moot. Defendants have already timely resisted. (Doc. 18). Lastly, plaintiff filed a reply brief. (Doc. 23).

         In its 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).

         II. STANDARDS

         The 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 summarized:

[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. (quotation omitted).

         Plaintiff cites Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990)[2] 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).

         III. ANALYSIS

         Plaintiff 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 ...


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