Anderson v. Century Prods. Co.

• Court: District Court, D. New Hampshire
• Decided: October 24, 1995
• Docket: CV-95-349-SD
• Status: Published

Opinion

Anderson v. Century Prods. Co. CV-95-349-SD 10/24/95 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Dana Anderson

v. Civil No. 95-349-

Century Products Company

O R D E R

In this diversity action, plaintiff Dana Anderson asserts

various state common law, contract, and tort claims against

defendant Century Products Company arising out of defendant's

treatment of plaintiff's purported infant carseat/stroller

invention.

Presently before the court are (1) plaintiff's motion for

leave to take a telephonic deposition of Robert D. Wise,

Century's Vice President of Research and Development and (2)

plaintiff's motion for enlargement of time.1 Defendant has fi

a solitary objection addressing both of plaintiff's motions.

Plaintiff's reguest for additional time is directed to defendant's motion to dismiss or change venue, resolution of which is pending the outcome of the instant motions for relief Background

By written complaint filed in this court on July 13, 1995,

plaintiff initiated the instant lawsuit against Century, a

corporation organized and existing under the laws of the State of

Delaware and having its principal place of business in Ohio.

On or about September 15, 1995, defendant filed a motion to

dismiss or, in the alternative, transfer venue. Appended to said

motion are eight exhibits and a "declaration" executed by Robert

Wise.2 It is this eight-page declaration that has caused

plaintiff to seek the court's permission to telephonically depose

Mr. Wise and win additional time to properly draft a response to

defendant's motion.

Discussion

1. Standard of Review

Defendant correctly notes that "[a]lthough a court

considering a motion to dismiss for failure to state a claim is

limited to the facts stated in the complaint, the complaint

includes any written instrument attached to it as an exhibit and

any statements or documents incorporated into it by reference."

2Said declaration, having been executed according to the dictates of 28 U.S.C. § 1746, shall be treated as an affidavit for the purposes of ruling on the motions sub judice.

2 Paulemon v. Tobin, 30 F.3d 307, 308-09 (2d Cir. 1994) (citation

omitted). Indeed, Rule 10(c), Fed. R. Civ. P., specifically

states that " [a] copy of any written instrument which is an

exhibit to a pleading is part thereof for all purposes." See

also Orenstein Advertising, Inc. v. New York Times, 7 68 F. Supp.

1133, 1136 n.3 (E.D. Pa. 1991) (noting effect of Rule 10(c)).

The court notes that plaintiff has attached to his amended

complaint four exhibits which essentially chronicle the treatment

of plaintiff's "invention" by Century's Research & Development

group. See Amended Complaint Exhibits A-D. As reguired by the

Federal Rules, said exhibits will be treated, for all purposes,

as part and parcel of plaintiff's complaint.

However, defendant's pre-answer motion under Rule 12, Fed.

R. Civ. P., not only contains exhibits similar to those

incorporated into plaintiff's complaint, but also an eight-page

declaration executed by one of Century's corporate officers. See

Declaration of Robert D. Wise (attached to Defendant's Motion to

Dismiss or Change Venue). Such document was submitted on

Century's behalf in support of its combination Rule 12(b)(3) and

12(b)(6) motion, but in the view of the court the averments

contained therein are more directly applicable to the

jurisdictional issue than to any alleged failure on the part of

plaintiff to state a claim.

3 Although conversion to a motion under Rule 56 is ordinarily

required when affidavits and other materials are appended to a

motion under Rule 12(b) (6), Fed. R. Civ. P.,3 the same does not

hold when affidavits are submitted to the court in aid of the

jurisdictional issue. See, e.g., Intermatic, Inc. v. Tavmac

Corp., 815 F. Supp. 290, 292 (S.D. Ind. 1993) ("To determine

whether the exercise of personal jurisdiction is proper, a court

may receive and consider affidavits and other documentary

evidence.") (citation omitted); National Gypsum Co. v. Dalemark

Indus., Inc., 773 F. Supp. 1476, 1478-79 (D. Kan. 1991)

("Affidavits and other documentary evidence may be submitted for

the court's consideration.") (citation omitted).

For the reasons that follow, the court will allow plaintiff

to inquire, by medium of telephonic deposition, into the

jurisdictional facts alleged in Mr. Wise's declaration and will

3As that rule, in pertinent part, succinctly provides.

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Rule 12(b), Fed. R. Civ. P.

4 be further granted additional time to prepare a response to

defendant's motion to dismiss or change venue. Because the court

will consider the Wise declaration only for jurisdictional

purposes, and same will be excluded from any consideration of the

merits of defendant's Rule 12(b)(6) argument, the court hereby

finds and rules that the motion need not be converted to one for

summary judgment.

2. Plaintiff's Right to Discovery

"The plaintiff's right to utilize the discovery measures

provided by the Rules to ascertain the facts having a bearing on

the jurisdictional guestion before the court is well recognized."

Commonwealth Oil Ref. Co. v. Houdry Process Corp., 22 F.R.D. 306,

308 (D.P.R. 1958) (citations omitted). Accord H.L. Moore Drug

Exch. Inc. v. Smith, Kline & French Labs., 384 F.2d 97, 97 (2d

Cir. 1967) ("when a defendant moves to dismiss for lack of

jurisdiction, either party should be permitted to take

depositions on the issues of fact raised by the motion"); Central

Wesleyan College v. W.R. Grace & Co., 143 F.R.D. 628, 644 (D.S.C.

1992) ("This court may compel discovery to aid its resolution of

personal jurisdiction issues"), aff'd , 6 F.3d 177 (4th Cir.

1993); Mikulewicz v. Standard Elec. Tool Co., 20 F.R.D. 229, 230

(S.D.N.Y. 1957) ("depositions are an appropriate means of

5 ascertaining facts relevant of the issue of jurisdiction"); 8

C harles A. W r i g h t , et al ., F e deral P rac t i c e and P r o c e d u r e : C ivil 2 d § 200 9,

at 124 (1994) ("it has long been clear that discovery on

jurisdictional issues is proper").

Moreover, "a defendant, [who has] challeng[ed] the court's

jurisdiction, has no right to keep its records, personnel and

sources of information free from any access by the plaintiff

through such reasonable discovery measures as are provided by the

[Federal Rules of Civil P r o c e d u r e ] Commonwealth Oil Ref. Co.,

supra, 22 F.R.D. at 308 (emphasis added) . So long as it does not

appear to the court that plaintiff is merely seeking to engage

"in some frivolous fishing expedition in the sea of

jurisdictional proof . . . a district court should ordinarily

allow discovery on jurisdiction in order to aid the Plaintiff in

discharging the burden of establishing the court's jurisdiction."

Central Wesleyan College, supra, 143 F.R.D. at 644 (citing

Surpitski v. Hughes-Keenan Corp., 362 F.2d 254 (1st Cir. 1966))

(other citations omitted); see also Oppenheimer Fund, Inc. v.

Sanders, 437 U.S. 340, 351 n.13 (1978) ("where issues arise as to

jurisdiction or venue, discovery is available to ascertain the

facts bearing on such issues") (citations omitted). C f . Palmieri

v. Estefan, 793 F. Supp. 1182, 1186 (S.D.N.Y. 1992) ("If

jurisdiction is challenged prior to discovery, the plaintiff may

6 defeat the motion by a good faith pleading of legally sufficient

allegations of jurisdiction.") (citation omitted); Monsanto Int'1

Sales Co. v. Hanjin Container Lines, Ltd., 770 F. Supp. 832, 838-

39 (S.D.N.Y. 1991) ("While discovery on the guestion of personal

jurisdiction is sometimes appropriate when there is a motion to

dismiss for lack of jurisdiction, plaintiffs must first make a

threshold showing that there is some basis for the assertion of

jurisdiction.") (citation omitted), aff'd without opinion, 962

F .2d 4 (2d Cir. 1992).

Inasmuch as discovery on the jurisdictional issues will lend

assistance to the court as it makes its ruling on defendant's

motion to dismiss or change venue, either by indicating that this

court lacks jurisdiction over the defendant or that jurisdiction

is proper but an alternate venue is more appropriate, the court

finds that plaintiff's reguest for discovery is both reasonable

and warranted. However, any such discovery conducted should be

limited in scope strictly to those facts dealing with

jurisdiction, as the necessity for further discovery will be

dependent upon the court's determination of the

jurisdiction/venue motion. See, e.g., 4 James W m . M o o r e , M o o r e 's

F ederal P ract i c e 5 26.07 [6], at 26-166 (1995) (common for court to

first limit discovery solely to issue of jurisdiction, leaving

other discovery until such time as court is certain party

7 involved is properly before court as defendant)

3. Method of Taking Discovery Granted

Plaintiff seeks to obtain the requisite discovery by medium

of telephonic deposition. The Federal Rules provide for such a

discovery means, see Rule 30(b)(7), Fed. R. Civ. P.,4 and

permission for same should ordinarily be granted unless an

objecting party will likely be prejudiced thereby or the method

employed "would not reasonably ensure accuracy and

trustworthiness . . . ." Rehau, Inc. v. Colortech, Inc., 145

F.R.D. 444, 446 (W.D. Mich. 1993) (citing Colonial Times, Inc. v.

Gasch, 509 F.2d 517 (D.C. Cir. 1975)).

Although defendant objects to plaintiff's request for

limited discovery, such objection is not addressed to the issue

of prejudice, but rather that "plaintiff's instant requests

potentially serve to delay the resolution of [the motion to

dismiss/transfer venue] and to increase costs, without

justification." Defendant's Memorandum of Law at 3-4. Such a

stated rationale is insufficient to forestall an otherwise

permitted discovery request. See, e.g., Jahr v. IU Int'l Corp.,

4Rule 30(b)(7), Fed. R. Civ. P., provides, in relevant part, that "[t]he parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone or other remote electronic means." 109 F.R.D. 429, 432 (M.D.N.C. 1986) ("the party opposing the

telephonic deposition must come forward with a particularized

showing as to why a telephonic deposition would prejudice it").

Moreover, given defendant's expressed concern about cost and

delay, deposition by telephonic means is the form of discovery

best suited to accommodate such concerns. See, e.g., Bywaters v.

Bywaters, 123 F.R.D. 175, 176 (E.D. Pa. 1988) ("[t]he Rules of

Civil Procedure favor the use of our technological benefits in

order to promote flexibility, simplify the pretrial and trial

procedure and reduce expenses to parties") (guotation omitted).

The court thus finds and rules that the discovery ordered

herein shall proceed via telephonic means. Accordingly,

plaintiff's motion to take the telephonic deposition of Robert D.

Wise must be and herewith is granted. Said deposition shall take

place within thirty (30) days from the date of this order.

4. Motion for Enlargement of Time

Plaintiff's motion for enlargement of time to respond to

defendant's motion to dismiss is herewith granted. Plaintiff

shall have until 4:30 p.m. on December 15, 1995, to file any and

all responses to defendant's previously filed motion to dismiss

or change venue. Conclusion

For the reasons set forth herein, plaintiff's motion to take

the telephonic deposition of Robert D. Wise (document 9) and

motion for enlargement of time (document 8) are granted. Said

deposition shall take place within the next thirty (30) days, and

plaintiff shall further have until 4:30 p.m. on December 15,

1995, to file any responses to defendant's pending motion to

dismiss/change venue.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

October 24, 1995

cc: Paul M. DeCarolis, Esg. Eugene A. Feher, Esg. W. Wright Danenbarger, Esg. Michael E. Sobel, Esg.