Thk America, Inc. v. NSK Co.

160 F.R.D. 100, 1994 U.S. Dist. LEXIS 20223, 1994 WL 752581
Procedural entryThis page is a short order in Thk America, Inc. v. NSK Co.. Read the opinion of the Court — 151 F.R.D. 625
District Court, N.D. Illinois·Decided October 6, 1994·No. No. 90 C 6049·Published

Opinion

ORDER

ROSEMOND, United States Magistrate Judge.

Before the Court is plaintiff THK America, Inc.’s “Motion To Enforce A Stipulation Or, Alternatively, To Obtain Selected Damages-Related Discovery.” The motion is granted. The Stipulation is enforced.

Also before the Court is THK’s “Motion To Direct Defendants To Proceed With Settlement Discussions.” The motion is granted. The parties’ settlement conference presently set for October 7th is hereby struck. THK is awarded its reasonable attorneys’ fees incurred in connection with the filing of the motion.

According to “THK’s Memorandum In Support Of Its Motion To Enforce A Stipulation Or, Alternatively, To Obtain Selected Damages-Related Discovery,” “THK asked NSK to stipulate to certain sales information ... relevant to the damages part of th[e] case.”1 “NSK responded that it would ‘accept THK’s proposed stipulated sales data’, but only ‘on condition that THK stipulate to vacate the sanctions awarded against NSK ... [and to] reimburs[e] NSK for all sums paid as sanctions and reinstat[e] NSK’s use of the ‘Attorneys’ Eyes 0111/ designation.’ ”2 More specifically,

NSK would accept THK’s proposed stipulated sales data on condition that THK stipulate to vacate the sanctions awarded against NSK, as improvidently granted; and Judge Norgle approves such stipulation. This would include reimbursing NSK for all sums paid as sanctions and reinstating NSK’s use of the “Attorneys’ Eyes Only” designation.3
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If THK is unwilling to accept NSK’s offer, NSK is nevertheless agreeable to stipulate to the sales of the parties THK and NSK, as soon as NSK’s experts have concluded their checking of THK’s computer data (which will probably be done this week).4

It should be noted that the sales information for which stipulation is sought is — according to THK — either “non-existent or de minimis and ... [therefore is] susceptible to stipulation.”5 Indeed, according to THK, “only two other companies besides THK and NSK have enjoyed substantial linear guide sales and, for one of them, this has only been true for the last few years.”6

The stipulation proposed “is based in part on THK’s linear guide sales and on data obtained from NSK in discovery which reflects NSK’s linear guide sales.”7 At all relevant times, THK has been willing and prepared to make whatever reasonable adjustments in the sales data deemed appropriate by NSK.8 No adjustments were ever suggested or proposed by NSK.

The “Declaration of Robert M. Kunstadt,” one of the attorneys for NSK, states that immediately upon his review of THK’s “Motion To Enforce A Stipulation Or, Alternatively, To Obtain Selected Damages-Related Discovery,” he “telephoned THK’s counsel, Mr. John Daniel, to advise him that the [102] motion was improper in that, inter alia, it erroneously represented NSK’s position as agreeing to THK’s proposed third party sales data and it erroneously portrayed NSK’s counteroffer as being conditioned almost exclusively on the payment of money to NSK.”9 Attorney Kunstadt’s declaration states further that “[d]uring [his] telephone conversation with Mr. Daniel, [attorney Kunstadt] offered to compromise and resolve the issue by stipulating to THK’s proposed third party sales data if THK agreed to vacate the sanctions imposed on NSK, even without the need for THK to return the $96,000 in attorneys’ fees paid to THK.”10 “Mr. Daniel declined to do so.”11

THK contends that NSK’s conditioning of its acceptance of an otherwise acceptable Stipulation on the making of a cash payment by THK or some other unrelated condition is neither permitted by the federal rules of civil procedure nor the Ethical Considerations and Disciplinary Rules set forth in the Code of Professional Responsibility.12 THK maintains that NSK’s conduct in this regard is an “egregious” abuse of the discovery process.

Finally, THK notes that this litigation is now at the pre-trial order stage where issue-narrowing and stipulations are essential to the orderly structuring of the anticipated upcoming trial, and therefore in the interest of judicial economy the parties ought to stipulate to matters where they can. Where, as here, there appears to be no real disagreement concerning the acceptability of the matter for which stipulation is sought, it is improper to demand money from an adversary as a condition of acceptance. Stipulations in preparation of a pre-trial order are not cash items for sale.

Under the “Standing Order Establishing Pretrial Procedure,” “[c]ounsel for all parties are directed to confer in person (face to face) at their earliest convenience in order to ... reach any possible stipulations narrowing the issues of law and fact____”13 Consistent with the Court’s standing pretrial procedure order, THK has sought to narrow the various damages issues by proposing a stipulation covering certain sales information. The letter and spirit of the Standing Order of this Court dictates that NSK stipulate to facts to which it has no basis for objecting.

This is not a situation where a party is being forced to enter into a stipulation. Quite the contrary. The record reveals that the stipulation proposed was at all relevant times acceptable to NSK. The only reason proffered by NSK for not accepting THK’s proposed stipulation was that NSK wanted its inappropriate “tagged-on” condition(s) accepted by THK. There was no objection by NSK to the accuracy of the facts set forth in the stipulation. No substantive objection to the nature, concept, or parameters of the stipulation was ever made by NSK. The conditions sought to be imposed are completely unrelated to the proposed stipulation. Accordingly, NSK has in fact accepted THK’s stipulation since the conditions attached to NSK’s acceptance of the stipulation constitute at worst blackmail and at best a gun-less hold-up.

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Thk America, Inc. v. NSK Co., 160 F.R.D. 100, 1994 U.S. Dist. LEXIS 20223, 1994 WL 752581 (N.D. Ill. 1994).

160 F.R.D. 100 (Thk America, Inc. v. NSK Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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