Delaware Business Litigation Report

Federal Court Permits Motion To Compel Deposition Of Rule 30(b)(6) Witness

Jurimex Kommerz Transit G.M.B.H. v. Case Corp., No. Civ.A. 00-083 JJF, 2005 WL 440621 (D.Del. Feb. 18, 2005). Plaintiffs filed a motion to compel deposition testimony of defendant's subsidiaries in a matter involving an international transaction. The motion was granted in part and denied in part. Plaintiff Jurimex Kommerz Transit G.M.B.H. (Transit") is an Austrian company, with its principal place of business in that country. Plaintiff's business involved commodities and machinery brokerage, and brokering deals between businesses in Eastern and Western Europe, and the United States. A second plaintiff, Jurimex Kommerz Transit Agrar ("Agrar") is also, likewise, incorporated and has its principal place of business in Austria. Agrar was established to enter into a partnership with IP Consult, forming an Austrian entity Arge IPC-Jurimex (IPC"). IPC was formed to represent Case Corporation ("Case"), a U.S.-based manufacturer of agricultural machinery, to undertake the sale of products to a Kazakhstan entity ("Golden Grain"). Defendant Case is a Delaware entity with its principal place of business in Racine, Wisconsin. In February 2000, plaintiff filed a Complaint alleging several claims of breach of contract. The allegations directed at Case included usurpation of its business opportunity with Golden Grain, depriving it of about $43 million in commissions and lost profits. Case filed a Motion to Dismiss and for a Protective Order, which was granted. The Court granted the Motion to Dismiss in July 2001 and closed the case partly because necessary parties were not joined and if joined would have destroyed diversity. Defendant Case also raised forum non conveniens arguments that the Court did not address. In late 2002, plaintiff appealed the dismissal and denial of a Motion to File An Amended Complaint. It commenced an action in a Wisconsin state court during the pendency of the appeal in the Third Circuit to toll the running of any governing statute of limitations. The Third Circuit reversed the denial of the Motion To File An Amended Complaint based on agency, but affirmed the dismissal because plaintiff had not pled agency. On remand, the District Court permitted the plaintiff to amend its Complaint. The plaintiff then asserted claims against Case as a joint tortfeasor, a theory drawn from its allegations of agency between Case and its subsidiaries in Europe. The claims included: (1) breach of contract and implied covenant of good faith and fair dealing; (2) quasi-contract/unjust enrichment/restitution; (3) promissory estoppel; (4) breach of implied contract; (5) tortious interference; (6) unfair competition and misappropriation; and (7) prima facie tort. The Court granted the plaintiffs Motion To Compel Production Of Documents And Responses To Interrogatories and other information involving agreements that were negotiated by Case's European subsidiaries on behalf of Case. Additionally, the Court set the limit for interrogatories and requests for admission and limited discovery concerning the allegations of the principal-agency relationship involving Case and its subsidiaries with respect to the Golden Grain transaction. Plaintiff then moved to compel Case to produce a corporate designee for a Fed.R.Civ.P 30(b)(6) deposition and two other witnesses, contending that Case had declined to produce the witnesses. Case also allegedly charged that the plaintiff sought to circumvent the prior "indispensable parties" ruling. The Court examined Fed.R.Civ.P 30(b)(6) case law and held that Case "must produce for deposition one or more corporate witnesses that satisfy the requirements of Federal Rule ... 30(b)(6) ...." The Court however declined to compel the depositions of the other two witnesses sought in the instant Motion to Compel, but permitted leave to renew the motion after the plaintiff deposed the 30(b)(6) witnesses. Authored by: Raj Srivatsan 302.888.6831 rsrivatsan@morrisjames.com Share