Abrasives-South, Inc. v. AWUKO Abrasives Wandmacher GmbH & Co. KG

225 F. Supp. 3d 545, 2016 U.S. Dist. LEXIS 183434, 2016 WL 8116893
CourtDistrict Court, D. South Carolina
DecidedAugust 17, 2016
DocketNo: 2:16-cv-768-RMG
StatusPublished
Cited by1 cases

This text of 225 F. Supp. 3d 545 (Abrasives-South, Inc. v. AWUKO Abrasives Wandmacher GmbH & Co. KG) is published on Counsel Stack Legal Research, covering District Court, D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abrasives-South, Inc. v. AWUKO Abrasives Wandmacher GmbH & Co. KG, 225 F. Supp. 3d 545, 2016 U.S. Dist. LEXIS 183434, 2016 WL 8116893 (D.S.C. 2016).

Opinion

ORDER

Richard M. Gergel, United States District Court Judge

This matter is before the Court on Defendants AWUKO Abrasives Wandmacher GmbH & Co KG and Wandmacher GmbH’s Rule 12 motions to dismiss for running of the statute of limitations, abstain on grounds of international comity, and, in the alternative, to compel arbitration. (Dkt. No. 11). For reasons below, the Court construes the motion to dismiss as a motion for summary judgment and GRANTS the motion for summary judgment.

Background

Plaintiff ASI is a North Charleston, South Carolina-based manufacturer, pro-cesser, and distributor of abrasive products (e.g,, sandpaper). Defendant AWUKO is a Germany-based abrasive products manufacturer. In 2008, Plaintiff began purchasing products from Defendant AWUKO, and in April 2011, Plaintiff and Defendant AWUKO entered into two agreements.

Defendant Marty Korte worked for Plaintiff as its national sales manager. In March 2012, Defendant Korte left Plaintiffs employ. At that time, Plaintiffs president, Jim Carter, confronted Defendant Korte regarding suspicions that he “had been providing information to other competitors and vendors.” (Dkt. No. 15-1 at 1-2), Defendant Korte denied any wrongdoing.

In October 2012, Carter wrote a letter Defendant AWUKO’s president regarding his suspicions that AWUKO had improperly paid Korte. (Dkt. No. 15-1 at 2). Defendant AWUKO’s president subsequently denied any wrongdoing. The business relationship between Plaintiff and Defendant AWUKO deteriorated, and on October 29, 2012, Defendant AWUKO filed for declaratory negative relief in Gottingen District Court in Germany.

On November 14, 2012, AWUKO’s president received a letter from Plaintiffs then-[547]*547counsel, which stated that “it is not disputed that, unknown to my client, your company paid my client’s sales representative substantial sums of money to promote your product to the exclusion of other brands that my client carries. This resulted in an inferior product being marketed by my client, which resulted in lost business.” (Dkt. No. 16-2 at 2). The letter also claims that Defendant AWUKO’s actions were a violation of the South Carolina Unfair Trade Practices Act and resulted in damages that “far exceed the amount of $13,826.28” Defendant AWUKO sought in the action in Gottingen District Court. (Id.).

On January 25, 2013, Plaintiffs German counsel, sent a letter to AWUKO’s German counsel stating that he had had the opportunity to “intensively discuss this matter with my co-counsel ... as well as our client.” (Dkt. No. 16-13 at 2). The letter goes on to state that counsel “was quite surprised to learn that AWUKO explicitly admitted in writing [to] having made substantial payments to Marty Korte.” • (Dkt. No. 16-3 at 3).

On February 4, 2013, counsel for Plaintiff and Defendant AWUKO met in Germany to resolve the German lawsuit. At this meeting, Defendant AWUKO’s counsel allegedly admitted that AWUKO “had had an ongoing business relationship with Mr. Korte, including paying him and receiving information.” (Dkt. No. 15-2 at 2).

On February 1, 2016, Plaintiff filed this proceeding in the Charleston County Court of Common Pleas, and the case was removed to this Court on March 10, 2016. (Dkt. No. 1). Defendants subsequently filed this motion. (Dkt. No. 11).

Legal Standard

Although Defendants moved to dismiss the case pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, they have presented and are relying on matters outside of the pleadings. Accordingly, the motion is treated as for one for summary judgment under Rule 56. Fed. R. Civ. P. 12(d).

Summary judgment is appropriate if a party “shows that there is no genuine dispute as to any material fact” and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In other words, summary judgment should be granted “only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts.” Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). “in determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities in favor of the nonmoving party.” Health-South Rehab. Hosp. v. Am. Nat’l Red Cross, 101 F.3d 1005, 1008 (4th Cir. 1996). The party seeking summary- judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Once the moving party has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324, 106 S.Ct. 2548. Rather, the non-moving party must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. Under this standard, “[c]onclusory or speculative allegations do not suffice, nor does a ‘mere scintilla of evidence’ ” in support of the non-moving party’s case. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (quoting Phillips v. CSX Transp., Inc., 190 F.3d 285, 287 (4th Cir. 1999)).

Discussion

. The applicable statutes of limitations for all of Plaintiffs claims against Defendants [548]*548AWUKO and Wandmacher are all three years. S.C. Code Ann. §§ 15-2-530(5) (interference with contractual relationships); 15-3-530(7) (claims of fraud); 39-5-150 (SCUPTA); 39-8-70 (misappropriation of trade secrets claims).

Under “the discovery rule, the statute of limitations begins to run from the date the injured party either knows or should know, by the exercise of reasonable diligence, that a cause of action exists for the wrongful conduct.” True v. Monteith, 327 S.C. 116, 489 S.E.2d 615, 616 (1997). Under South Carolina law, the “exercise of reasonable diligence” requires that the injured party “act with some promptness where the facts and circumstances of an injury place a reasonable person of common knowledge and experience on notice that a claim against another party might exist.” Dean v. Ruscon Corp., 321 S.C. 360, 468 S.E.2d 645, 647 (1996). The date on which the discovery of a cause of action should have been made is an objective question, Bayle v. S. Carolina Dep’t of Transp., 344 S.C. 115, 542 S.E.2d 736

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225 F. Supp. 3d 545, 2016 U.S. Dist. LEXIS 183434, 2016 WL 8116893, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abrasives-south-inc-v-awuko-abrasives-wandmacher-gmbh-co-kg-scd-2016.