Miller Constructions Equipment Sales, Inc. v. Clark Equipment Company

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
MILLER CONSTRUCTION
EQUIPMENT SALES, INC.,
Plaintiff,
v.
Case No. MC415-013
CLARK EQUIPMENT COMPANY
d/b/a DOOSAN INFRACORE
CONSTRUCTION EQUIPMENT
OF AMERICA,
(Pending in the United States District
Defendant, Court for the District of Alaska,
Civil Action No. 1:15-cv-00007-HRH)
JCB, INC.,
Interested Party.
ORDER
JCB, Inc., a Savannah, Georgia area heavy equipment
manufacturer, initiated this proceeding (a miscellaneous filing in this
Court) to quash a Fed. R. Civ. P. 45 deposition subpoena served upon
it by Clark Equipment Company, d/b/a Doosan Infracore Construction
Equipment America (“Doosan”). Doc. 1. As the above caption shows,
Doosan was sued in an Alaskan state court by Miller Construction
Equipment Sales, Inc. (“MCESI”), and that case (removed to the
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United States District Court for the District of Alaska) is ongoing. In
fact, Doosan’s subpoena originated from that underlying federal court
action, but it was served on JCB in this District since this is where it
is to be enforced or quashed. 1
This Court stayed Doosan’s subpoena (doc. 2) and initially
granted JCB’s quash motion as administratively unopposed per Local
Rule 7.5 (no response means no opposition), but then granted Doosan
a second chance to litigate the quash motion on the merits. Miller
Constr. Equip. Sales, Inc. v. Clark Equip. Co. , ___ F. Supp. 3d ___,
2015 WL 5016504 (S.D. Ga. Aug. 21, 2015). The briefing has been
extensive and, while the Court was considering it, Doosan moved to
transfer this matter to the underlying District of Alaska action,
1 As explained elsewhere:
Subpoenas served on nonparties are governed by Fed. R. Civ. P. 45, which
requires that “a subpoena must be issued by the court where the underlying
action is pending, but challenges to the subpoena are to be heard by the
district court encompassing the place where compliance with the subpoena is
required.” Woods ex rel. United States v. SouthernCare, Inc ., 303 F.R.D. 405,
406 (N.D. Ala. 2014). “When the court where compliance is required did not
issue the subpoena, it may transfer a motion under this rule to the issuing
court if the person subject to the subpoena consents or if the court finds
exceptional circumstances.” Fed. R. Civ. P. 45(f).
Venus Med. Inc. v. Skin Cancer & Cosmetic Dermatology Ctr. PC , 2016 WL 159952 at
* 2 (D. Ariz. Jan. 14, 2016) (emphasis added).
2
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insisting that it meets Rule-45(f)’s “exceptional circumstances”
requirement for doing so. Doc. 22 at 1; see also supra n. 1. JCB
opposes. Doc. 24.
I. BACKGROUND
MCESI sued Doosan over what it alleges to be Doosan’s
constructive termination of MCESI’s heavy construction equipment
Dealer agreement with it. 2 CV115-007, doc. 29 at 6. 3 It has since moved
for partial summary judgment on some of its claims and against Counts
One, Two, and Three of Doosan’s countclaims. Doc. 29. In support of
that, MCESI General Manager Andrew H. Miller supplies some
background facts which inform the motion before this Court:
MCESI was formed in 2006 for the purpose of becoming the first
Doosan equipment dealer in Alaska. From 2006 through the end of
2013, MCESI was the only Doosan heavy construction equipment
dealer in Alaska. The Doosan dealerships were pursuant to the
terms of a series of one year Dealer Sales Agreements that, by their
terms, each expired on December 31st of the contract year.
2 For purposes of this Order only, the Court is accepting as true the facts asserted in
the parties’ various filings, including MCESI’s partial summary judgment motion
filings in the Alaska case, CV115-007 docs. 29 & 31. Also, and for simplicity’s sake, it
will reference all MCESI-Doosan “Agreements” as “The Agreement.” See doc. 1 at
44-45.
3 The Court will cite to the District of Alaska court documents by prefacing the first
in a series of documents with that court’s docket number, CV115-007. It will do the
same with documents from this proceeding, MC415-013.
3
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MCESI’s last executed Dealer Sales Agreement expired by its own
terms on December 31, 2014. It was never renewed.
Doc. 31 at 2 ¶ 4 (Miller Declaration).
MCESI was not only unhappy about the non-renewal, but also
with Doosan’s relationship with Craig Taylor Equipment (“CTE”), a
much larger equipment dealer in Alaska. Doosan had enabled CTE to
become “a full Doosan dealer in CTE’s Fairbanks office and to carry
and promote Doosan products in its other offices which were located
in MCESI’s area of primary responsibility (‘APR’).” Id. ¶ 5. MCESI
thus complained, and the MCESI/Doosan relationship continued to
deteriorate as Doosan promoted CTE at MCESI’s expense. Id. ¶ 7.
Miller ultimately wrote “Doosan[,] indicating that MCESI would be
pursuing its rights under Alaska’s statute governing distributorships,
AS §45.45.710-790.” Id. at 3 ¶ 8. 4 Efforts to work things out failed,
4 That statutory scheme protects dealers from certain distributor (hence,
manufacturer) practices. See AS § 45.45.700 (“(a) A distributor may not coerce or
attempt to coerce a dealer to perform certain acts by using duress or by threatening
to terminate the distributorship agreement or another agreement between the
distributor and the dealer.”); see also AS § 45.45.790(2)(B) (a “distributor” includes
any manufacturer).
Other sections address dealership-termination costs. See AS 45.45.710
(“Disposition of merchandise remaining upon contract termination”). That provision
requires dealership-terminating distributors to pay the dealer: “(1) the fair market
value for merchandise that is unused and for which the retailer has paid the
4
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and MCESI sued Doosan for “effectively terminating MCESI’s rights
under its Dealer agreement by failing to renew MCESI’s 2014 contract
after it expired and [promoting CTE’s interests at MCESI’s expense].”
Id. at 3-4, 6; see also doc. 1-2 at 7 (MCESI seeks over $3 million for
distributor, plus 100 percent of the transportation charges paid by the dealer to
return the merchandise to the distributor,” unless the dealer chooses to keep the
distributor’s merchandise. Id. And, while it is unclear if MCESI is invoking it, AS §
45.45.740 provides:
(a) In addition to any purchase of merchandise required by AS 45.45.710, if a
distributor terminates a distributorship agreement or makes substantial
changes in the competitive situation of the distributor's dealer with regard to
distribution of the merchandise or services that are the subject of the
distribution agreement, the distributor shall
(1) purchase that portion of the dealer's business directly affected by the
distributorship agreement or the change, including assets and
machinery, at commercially reasonable business valuations; and
(2) reimburse the dealer for the expenses that were necessarily incurred
by the dealer
(A) for that portion of the dealer's business covered by the
distributorship agreement; and
(B) during the 12 months before the termination or change.
(b) In this section, “change” does not include making a price change
that affects similarly situated dealers equally.
AS § 45.45.740 (emphasis added). MCESI wants Doosan to repurchase its unsold
Doosan equipment at fair market value. Doc. 29 at 7. It emphasizes that the purpose
of this statute is “to protect Alaska companies from large manufacturers like Doosan
in exactly the situation presented in this case.” Doc. 29 at 18. Doosan reads
MCESI’s claims as extending to “recovery from Doosan of every expense that MCESI
incurred in 2014 (except for the direct cost of products purchased from MCESI’s
other suppliers).” MC415-013, doc. 22-1 at 2 n. 2.
5
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repurchase of equipment and payments for the value of lost business
and its expenses). MCESI says its
complaint raises simple statutory claims, under AS § 45.45.710-
790, that follow from the termination of MCESI’s dealer
agreement and Doosan’s actions in allowing CTE to become a
competing dealer in MCESI’s territory. In its Answer, Doosan
admits that AS § 45.45.710-790 apply to the parties’ contractual
relationship. The simple factual issues in the case will revolve
around Doosan’s allegation that it did not terminate the
agreement and that it did not substantially alter MCESI’s
competitive situation by appointing Craig Taylor as a competing
Doosan dealer in Alaska.
Doc. 29 at 6 (footnote omitted). “In its Answer and Counterclaims,”
“Doosan alleges that MCESI did not use its best efforts to promote
Doosan products during 2014. The basis for this allegation is
MCESI’s relationship with JCB, another equipment manufacturer.”
Doc. 31 at 6 ¶ 30; MC415-013, doc. 22-1 at 2 n. 3 (Doosan illuminating
its counterclaim that MCESI failed to use its best efforts to promote
Doosan’s products when it commenced promoting JCB’s). 5
5 Doosan also “denies that it terminated the Agreement and denies that MCESI has
any legitimate statutory or common law claims against Doosan arising out of the
Agreement or otherwise. To the contrary, MCESI resigned as a dealer and -- as set
forth in Doosan's Counterclaim -- MCESI breached its obligations to Doosan under
the Agreement starting long before its resignation.” CV115-007, doc. 1 at 40. More
specifically, it contends that: “(1) MCESI improperly sold competing JCB equipment
during 2014; and (2) because MCESI improperly sold JCB equipment it did not use
its best efforts to sell Doosan equipment during 2014.” Doc. 29 at 19.
6
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In fact, Doosan views the litigation in a more complex manner.
It insists that MCESI terminated the relationship based on pretextual
grounds so it could further its longstanding plan to sell competing
JCB products. CV115-007, doc. 5 at 3; see also id. at 3-4 (recounting
MCESI’s alleged duplicitous conduct and insisting that “MCESI has
inflicted injury on Doosan as set forth in Doosan’s
Counterclaim.”). It thus wants information from JCB (hence, its
subpoena and JCB’s quash motion here) to uncover information if not
evidence on that score. And, it reminds (in urging transfer here), it is
moving the Alaska court “to compel MCESI to produce documentation
of its relationship with JCB.” MC415-013, doc. 22-1 at 2.
The picture is even more nuanced given MCESI’s insistence that
in 2013 it told Doosan that it had been “pursuing an arrangement
with JCB to provide MCESI with a line of mini equipment that would
MCESI, which calls its agreement with Doosan an “adhesion contract,” id. at 21,
denies any breach. Id. at 23. In fact, it contends, the agreement excluded
competitive products which MCESI sold prior to the effective date of the agreement,
and that includes JCB. Id. at 23-24; see also id. at 27-28 (Doosan also failed to give
proper contractual notice of any claimed breach). Even so, MCESI only sold non-
competing JCB equipment. Id. at 24. And, despite Doosan’s active promotion of
CTE, MCESI’s 2014 sales performance met mutually agreed performance forecasts.
Id. at 24-25. Indeed, MCESI points out, Doosan offered MCESI a 2015 Dealership
Agreement just before MCESI sued it. Id. at 28 n. 29.
7
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not compete with MCESI’s existing Doosan equipment.” 6 CV115-007,
doc. 31 at 6 ¶ 31 (emphasis added). A Doosan representative, claims
Miller, “responded [that] it would not be a problem and he might have
a few questions.” Id. Miller welcomed them, but heard no further, so
MCESI “understood that to mean there was no problem.” Id. And in
fact, Miller emphasizes, “MCESI never sold any JCB equipment “that
competed with Doosan in its inventory during [2014 and the first six
months of 2015]. During 2013 and 2014 MCESI never actively
marketed any competing JCB equipment.” Id. ¶ 34.
Indeed, MCESI further emphasizes, Doosan -- prior to filing its
Answer -- “ never raised any issue with MCESI’s representation of
JCB’s mini equipment line.” Doc. 31 at 7 ¶ 39 (emphasis added). Nor
did it complain about MCESI’s sales performance during 2014. Id. ¶
40. Yet, Doosan now raises unfair trade practices and trademark
infringement counterclaims. Doc. 29 at 6; doc. 5 at 36-39. Again, it
served its Rule 45 subpoena on JCB to uncover information about the
6 It says in its summary judgment brief that “MCESI became a JCB dealer in
October, 2013, prior to the January 1, 2014 Effective Date of the 2014 Dealer Sales
Agreement between MCESI and Doosan.” Doc. 29 at 11. MCESI points out that
Doosan “has several other dealers in the United States which also represent and sell
JCB Equipment.” Id. at 12.
8
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MCESI/JCB relationship. 7 MC415-013, doc. 1 at 29-110. And JCB, in
turn, moves to quash it. 8
II. ANALYSIS
Rule 45(f) was revised in 2013:
7 Boiled down, Doosan wants to uncover information about MCESI/JCB dealings
before the MCESI/Doosan divorce. MC4-15-013, doc. 1 at 37 (Doosan’s 30(b)(6) Topic
# 1: “Any agreement, prospective or actual, between JCB and MCESJ whereby JCB
has authorized JCB to market, sell, and service products manufactured by JCB”;
Topic # 7 “The marketing strategies of MCESI or JCB for competing against Doosan
in Alaska”); see also id. at 1-2 (JCB’s interpretation: “The Subpoena commands JCB
to produce eight categories of documents by August 14, 2015, and to appear for its
deposition on August 21, 2015 prepared to testify regarding eight categories of
information virtually identical to the document requests.”).
Resisting this, JCB argues that Doosan is a competitor exploiting federal discovery
to extract otherwise irrelevant and ultimately inadmissible (and competitive,
proprietary) data from it. Doc. 1 at 1-4; see also id. at 4 (“JCB and Doosan are direct
competitors of one another”). JCB represents that, in an effort to informally resolve
this matter short of litigation, it informed Doosan’s counsel that the subpoena was
“unduly burdensome and overly broad and seeks documents and information that are
both commercially confidential and, according to [JCB's] understanding of the
Lawsuit, irrelevant and not reasonably calculated to lead to the discovery of
admissible evidence.” Doc. 1 at 2.
8 From the conclusion of JCB’s quash brief:
The Subpoena fails to comply with the content requirements under Rule 45, as
it does not set out subsections (c.) or (d) of that Rule, and is therefore invalid
and unenforceable. The Subpoena is overbroad and unduly burdensome as it
contains no meaningful limitation on content and no limitation whatsoever on
custodians. The Subpoena seeks irrelevant and confidential information.
Doosan and its attorneys have failed to take reasonable steps to avoid imposing
undue burden and expense on non-party JCB, including, without limitation, by
seeking the documents and information from MCESI. As such, JCB seeks an
award of its attorneys' fees and costs.
MC415-013, doc. 1 at 25.
9
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Prior to the [Fed. R. Civ. P.] 2013 amendments, subpoenas for
depositions or production of documents were issued from the court
for the district where compliance is required, and the power to
quash or modify any issued subpoenas was reserved to that court.
The 2013 amendments changed that structure. Under the new rule,
“[a] subpoena must issue from the court where the action is
pending.” Fed.R.Civ.P., Rule 45(a)(2). The new rule provides the
court where compliance is required with the power to adjudicate a
motion to quash or modify the subpoena. See Fed.R.Civ.P., Rule
45(d)(3). But the new rule also provides a vehicle for transferring
such motions to the issuing court: “When the court where
compliance is required did not issue the subpoena, it may transfer a
motion under this rule to the issuing court if the person subject to
the subpoena consents or if the court finds exceptional
circumstances.” Fed.R.Civ.P., Rule 45(f).
Agincourt Gaming, LLC v. Zynga, Inc ., 2014 WL 4079555 at *6 (D.Nev.
Aug. 15, 2014) (cite omitted). MCESI does not consent here, so Doosan
must show exceptional circumstances:
In the absence of consent, the court may transfer in exceptional
circumstances, and the proponent of transfer bears the burden of
showing that such circumstances are present. The prime concern
should be avoiding burdens on local nonparties subject to
subpoenas, and it should not be assumed that the issuing court is in
a superior position to resolve subpoena-related motions. In some
circumstances, however, transfer may be warranted in order to
avoid disrupting the issuing court's management of the underlying
litigation, as when that court has already ruled on issues presented
by the motion or the same issues are likely to arise in discovery in
many districts. Transfer is appropriate only if such interests
outweigh the interests of the nonparty served with the subpoena in
obtaining local resolution of the motion.
10
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Fed. R. Civ. P. 45(f) advisory committee’s note (2013). 9
Courts faced with a transfer motion “must account for the
complexity, procedural posture, duration of pendency, and the nature
of the issues pending before, or already resolved by, the issuing court
in the underlying litigation.” Google, Inc. v. Digital Citizens Alliance ,
2015 WL 4930979 at * 2 (D.D.C. July 31, 2015) (quotes and citation
omitted). They also “must balance the interest of local resolution
against factors such as judicial economy and risk of inconsistent
rulings.” Venus , 2016 WL 159952 at * 3 (citing Agincourt , 2014 WL
4079555 at * 7 (because similar discovery issues in issuing district had
9 Where a case is transferred, cost-minimizing features are deployed:
If the motion is transferred, judges are encouraged to permit
telecommunications methods to minimize the burden a transfer imposes on
nonparties, if it is necessary for attorneys admitted in the court where the
motion is made to appear in the court in which the action is pending. The rule
provides that if these attorneys are authorized to practice in the court where
the motion is made, they may file papers and appear in the court in which the
action is pending in relation to the motion as officers of that court.
After transfer, the court where the action is pending will decide the motion. If
the court rules that discovery is not justified, that should end the matter. If
the court orders further discovery, it is possible that retransfer may be
important to enforce the order.
Fed. R. Civ. P. 45(f) advisory committee’s note (2013); see also Argento v. Sylvania
Lighting Servs. Corp ., 2015 WL 4918065 at * 7 (D. Nev. Aug. 15, 2015) (“Rule 45(f)
itself expressly provides that a subpoenaed party does not need to obtain out-of-state
counsel in the event of a transfer.”).
11
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been briefed, the danger of inconsistent rulings therefrom weighed in
heavily in favor of transfer)); Valle del Sol, Inc. v. Kobach , 2014 WL
3818490 at * 4 (D. Kan. Aug. 4, 2014) (exceptional circumstances
found where similar issues arose in discovery in multiple districts,
thereby creating the risk of inconsistent rulings)).
Here, the above factual recitation unmistakably shows that JCB
either is or is not intricately involved in the District of Alaska case --
depending on which way that court rules on the still-pending partial
summary judgment motion filed by MCESI, as well as Doosan’s still-
pending motion to compel MCESI to produce, inter alia, “documents
regarding its communications and relationship with JCB.” CV115-
007, doc. 46 at 2. That court alone must interpret the meaning and
reach of the above-excerpted Alaskan statute, including what
constitutes distributor coercion, “best efforts,” fair and reasonable
repurchase and expense determinations, and so forth. The nature,
and thus the relevancy, of the MCESI-JCB relationship
comprehensively figures into that court’s summary judgment and
discovery determinations. And that, in turn, will drive that judge’s
determination of what JCB data and documents are relevant and thus
12
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necessary to disclose in order to resolve Doosan’s motion to compel,
MCESI’s motion for partial summary judgment, and perhaps even
trial on the parties’ claims. 10 A potentially inconsistent relevancy
determination by this Court would hamper, not assist, the litigation
there. 11
Finally, the internet enables easy access to the Alaska federal
court’s docket and Rule 45(f) goes out of its way to minimize “distance
litigation” in this context. See supra n. 9. It thus is fair to conclude
that the transfer burden on JCB (no small player on the world’s
industrial machinery stage) is easily outweighed by the exceptional
circumstances that Doosan illuminates.
10 Note that the Alaska federal district court has extended discovery there in part
based on how this Court will rule on the quash motion before it. CV115-007, doc. 60
at 2-3. Hence, this proceeding is directly impacting that proceeding.
11 JCB contends that the Alaska district court at most is determining the relevancy
of JCB’s documents, and is not being asked to focus on JCB’s confidentiality needs.
Doc. 24 at 7-8. But in fact it is determining closely analogous confidentiality needs in
reaching Doosan’s motion to compel MCESI/JCB documents from MCESI. It is but a
short step to additionally (and thus efficiently) consider JCB’s. More importantly,
the Alaska court may well moot much of JCB’s concerns by deciding that such
documents are just not discoverable ( i.e. , irrelevant). It can also direct Doosan to
first respond to MCESI’s summary judgment motion with a Fed. R. Civ. P. 56(d)
showing (i.e. , show what more it needs, discovery-wise, to rebut MCESI’s summary
judgment motion). That may well compel Doosan to identity with certainty what it
truly needs from JCB. And that, in turn, could assist JCB -- it seeks costs upon its
contention that Doosan has needlessly burdened it for documents it genuinely does
not need.
13
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Transfer of this proceeding to that court therefore is warranted.
Argento , 2015 WL 4918065 at * 7 (granting transfer because it
“advances judicial economy, avoids the potential for inconsistent
rulings, and prevents disruption of the management of the underlying
litigation.”); Google, 2015 WL 4930979 at * 5; Fed. Home Loan Mortg.
Corp. v. Deloitte & Touche LLP , 309 F.R.D. 41, 44 (D.D.C. 2015)
(transfer was proper because the underlying case demanded a
“nuanced legal analysis based on a full understanding of the
[u]nderlying [a]ction,” not “a mere relevancy determination,” and the
minimal burden on local party, if any, was far outweighed by the
exceptional circumstances shown); XY, LLC v. Trans Ova Genetics,
LLC., 307 F.R.D. 10, 13 (D.D.C. 2014) (transfer warranted where the
nonparty was intricately involved with a party to the underlying case
and the need for relevance determinations outweighed the minimal
burden on the nonparty); Wultz v. Bank of China, Ltd ., 304 F.R.D. 38,
46-47 (D.D.C. 2014) (transfer motion granted; the issuing court was
“in a better position to rule . . . due to her familiarity with the full
scope of issues involved as well as any implications the resolution of
the motion will have on the underlying litigation”).
14
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III. CONCLUSION
“Courts are in agreement that Rule 45(f) motions to transfer fall
within the gambit of non-dispositive matters properly determined by a
magistrate judge.” Argento , 2015 WL 4918065 at * 2; see also id. (“The
nondispositive nature of the resulting order is not altered by the fact that
a Rule 45(f) motion to transfer comes before the Court in the context of a
miscellaneous action based entirely on the disputed subpoenas, even
though the resolution of the motion to transfer may be dispositive of the
miscellaneous action and result in the administrative closing of that
case.”). The Court therefore GRANTS the motion of Clark Equipment
Company, d/b/a Doosan Infracore Construction Equipment America to
transfer this Miscellaneous Proceeding (MC415-013) to the federal
district court in Alaska where the above-captioned case (CV115-007)
originated. Doc. 22. Doosan’s oral argument motion is DENIED. Doc.
17. However, Doosan moved to seal its transfer brief, and that motion,
which is unopposed, doc. 23, is GRANTED (it meets L.R. 79.7’s sealing
criteria). 12 To that end, the Clerk is DIRECTED to assist the Alaska
12 Doosan explains (and this is unrebutted and unopposed) that its
15
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federal court in accessing (if not physically transferring to it) that
document. Finally, and subject to any JCB Fed. R. Civ. P. 72(a)
Objection, the Clerk is DIRECTED to administratively close this case
after it is TRANSFERRED to the Alaska federal court. 13
SO ORDERED, this 3rd day of February, 2016.
/Z
L'NITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
Transfer Memorandum [brief] contains information, including dollar amounts,
derived entirely from a General Ledger of Miller Construction Equipment
Sales, Inc. ("MCESI"). That General Ledger was produced by MCESI to Doosan
during discovery in a pending matter before the United States District Court
for the District of Alaska, Case No. C15-00007-HRH, and is Exhibit K to the
Transfer Memorandum and attached as Exhibit B to the present Motion. That
case is the matter in which Doosan served the deposition subpoena that led to
the Motion to Quash now pending before this Court. The General Ledger is
marked 'confidential" pursuant to the stipulated, signed protective order in
that case, a copy of which is attached as Exhibit C. Section 5.4 of that
Protective Order requires Doosan to file under seal all material designated
confidential.
Doc. 23 at 2. This satisfies Local Rule 79.7(e). See United States v. Brown , 2009 WL
1219963 at * 1 n. 2 (S.D. Ga. May 4, 2009).
13 JCB has a right under Rule 72(a) to Object to the district judge within 14 days
after it is served with a copy of this Order. The transfer ordered here, then, is subject
to the disposition of any timely filed Objection.
16
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