Womack v. Nissan North America, Inc., 2007 WL 5160790(E.D.Tex. Oct 12, 2007) (NO. 2:06-CV-479-DF)
Judge: David Folsom
Holding: Plaintiff's Motion for Limited Discovery GRANTED; Defendant's Motion to Dismiss for Lack of Jurisdiction and Insufficient Service of Process DENIED WITHOUT PREJUDICE
This is the putative (a word created to describe the first stages of class actions, as best I've been able to tell) odometer class action. Plaintiff moved for limited discovery on matters bearing on Nissan America's motion to transfer to the Eastern District of Michigan and to consolidate with three other cases pending in other districts and to establish proper service. Subsequent to this motion, the other actions with which Nissan America had requested consolidation were voluntarily dismissed. At the hearing on September 6, 2007, the parties indicated that they had reached an agreement on the motion to dismiss for improper service, so the only matter remaining for Judge Folsom to rule on was the motion for jurisdictional discovery and the motion to dismiss for lack of jurisdiction.
Essentially, Defendant Nissan Japan moved for dismissal alleging lack of personal jurisdiction, and plaintiff sought discovery into the defendant's contacts in order to respond. After reviewing the parties' arguments, Judge Folsom held that the Plaintiff has “suggest[ed] with reasonable particularity the possible existence of the requisite contacts” and therefore allowed discovery into the extent of control exercised by Nissan Japan over the affairs of Nissan America, and denied Nissan Japan's Motion to Dismiss without prejudice. The specific jurisdictional discovery permitted (whichs sets forth the framework for the proceedings to resolve Nissan Japan's personal jurisdiction defense) was the following:
It is ORDERED that for jurisdictional discovery as to Nissan (Japan), Plaintiffs may serve no more than twenty-five (25) interrogatories and twenty-five (25) requests for admissions. It is further ORDERED that for jurisdictional discovery as to Nissan (Japan), depositions shall be limited to a total of twenty-five (25) hours, except that deposition time requiring the use of an interpreter shall only count as half-time toward this total, e.g. one hour of deposition time requiring an interpreter shall only count as thirty minutes toward the twenty-five hour limit. No one deposition shall last longer than six (6) hours. These depositions shall take place in a mutually agreeable city in Japan, unless the parties agree otherwise.
It is further ORDERED that jurisdictional discovery shall be completed within 75 days after entry of this Order. Defendant may renew its motion to dismiss for lack of jurisdiction within 30 days of jurisdictional discovery being completed.
Joe Mullen is a reporter at IP Law & Business magazine who also runs a weblog The Prior Art - One reporter's notes on the IP beat . In his recent post on highlights from the May issue of the magazine he notes an article on the pending In re VW en banc proceedings at the Fifth Circuit. The article is at p. 14 of the May issue, which is available to subscribers - although it may show up on the magazine's website soon (as, for example, the 50 Top IP people under 45 article has). Good article.
