# Opposition Brief — Dikar, S. Coop. LTDA v. United States District Court for the Eastern District of Kentucky > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1585%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1998 - **Citation:** 525 U.S. 816 ## Text egestas Supreme Court. U.S , sk & D No. 97-1888 JUN 18 1998 Pb EETS 2. meenee CLERK we SUPREME COURT OF THE UNITED STATES October Term, 1997 Petitioner, DIKAR, 8S. COOP. LTDA, - - - - versus UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY (MATTHEW HAYMAKER, REAL PARTY ININTEREST) - - Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI PETER PERLMAN PETER PERLMAN LAW OFFICES, P.S.C. 388 South Broadway Lexington, Kentucky 40508 (606) 253-3919 Attorney for Respondent June 17, 1998 WESTERFIELD- BONTE CO., 619 W. KENTUCKY-—P.O. BOX 3251, LOUISVILLE, KY pgs Smale i QUESTION PRESENTED Whether a defendant, whose motion to dismiss for lack of jurisdiction has been denied with leave to renew, may refuse the District Court’s direction to provide full discov- ery to the plaintiff. il TABLE OF CONTENTS PAGE QUESTIONS PRESENTED .................ccceceecceeeeeeee- i TABLE OF AUTHORITIES ...............0c2e.cecsceeeceeeee ii CI A ii ie iv STATEMENT OF THE CASE ................ccccce00000-- 1 I. Factual Background ..........................2..00000- 1 | Il. Procedural Background ................0...00000+- 2 | I iceciiniitiiiicdiiittie i 4 A. Dikar Is Not Entitled to Mandamus BecauseThe District Court Has Ruled on Personal Jurisdiction ........................... 4 B. Requirements of Mandamus Have Not Been Shown in Any Case .......................00+ 6 SIT cciniiessninentetinciiitsipliliideaid aici baci deeds 9 Fg | RE aren an Us in Sleeee Pica TNT la—20a Se iil TABLE OF AUTHORITIES —_—_——— Cases: Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6 Cir 1981), cert. denied, 454 U.S. 893 RRR AER Cato nee oes ee City of Cleveland v. Krupansky, 619 F.2d 572, 575 (6* Cir.) cert. denied, 449 U.S. 834 REGIE AERTS SRS ap A In re American President Lines, Ltd., 929 F.2d pee ae oe ee Pe) In re Post-Newsweek Stations, 722 F.2d 325, 329 I a International Technologies Consultants, Inc. v. Euroglas S.A., 107 F.3d 386, 391 (6% Cir. cog eS STM TSE es ent a Nationwide Mutual Ins. Co. v. Tryg International Ins. Co., 91 F.3d 790, 793 (6% Cir. 1996) ......... Societe Nationale Industrielle Aerospatiale v. U.S. District Court for the Southern District of Iowa, 482 U.S. 522, 542 (1987) ......ccccccccscecees Theunissen v. Matthews, 935 F.2d 1454, 1465 > od SAREE RN Warden, Kentucky State Penitentiary v. Gall, 865 F.2d 786, 788-9 (6% Cir. 1989) ........ccccseessseeees Treatises: 8 Wright & Miller, Federal Practice and Procedure §2040 p.521 (1994) oo... ccccccccccccccceccees PAGE ~] or iv ORDERS BELOW The order of the court of appeals, which is unreported, is reprinted at App. la. The court of appeals’ denial of the petition for rehearing and suggestion for rehearing en banc is also unreported and is reprinted at App. 3a. The rel- evant orders of the district court, all of which are unre- ported, are reprinted at App. 4a-8a. No. 97-1888 SUPREME COURT OF THE UNITED STATES October Term, 1997 DIKAR, S. AA eee, ee Petitioner, versus UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY (MATTHEW HAYMAKER, REALPARTYININTEREST) - - ~- Respondent. ON PETITION FoR Writ oF CERTIORARI TO THE Unrtrep States Court or APPEALS FOR THE Srxtu Circurr BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI STATEMENT OF THE CASE I. Factual Background On September 26, 1996, Matt Haymaker purchased a muzzle-loading rifle from the Richmond, Kentucky, Wal- Mart store. The rifle was a Connecticut Valley Arms (here- after “CVA”) .50-caliber “Buckmaster” inline muzzle-load- ing rifle, which cost $214.96. It was a birthday gift from his parents. At the time, Matt was 22 years old and a student at Eastern Kentucky University. 2 On October 1, 1996, Matt was firing the rifle for the first time. He was accompanied by a friend to a target range, and they alternated shots while setting the sights on the rifle. On approximately the ninth shot, the rear end of the gun barrel exploded in Matt’s face, and he suf- fered catastrophic injuries. He was treated at the U.K. Medical Center for a ruptured globe of the right eye with corneoscleral laceration, facial lacerations, and orbital and maxillary sinus fractures. Matt has suffered severe permanent damages includ- ing the loss of his right eye. II. Procedural Background On December 27, 1996, a lawsuit was filed against CVA and Wal-Mart Stores, Inc., in the Scott Circuit Court. On January 28, 1997, the Defendants removed the case to the U.S. District Court for the Eastern District of Kentucky. Defendant CVA served its answers to Plaintiffs inter- rogatories in which it stated that it was not the manufac- turer of the “muzzle-loader” in question. Since it was not the manufacturer, CVA took the position that it was not required to produce blueprints, diagrams, or any testing documents. On March 19, 1997, the Plaintiff moved to file an Amended Complaint adding two additional defendants, in- cluding (a) Dikar, S. Coop. LTDA., Bergara, Spain (manu- facturer of the rifle); and (b) Gene Sears Supply Co., El Reno, Oklahoma (supplier of the rifle to Wal-Mart). On July 30, 1997, Defendant Dikar filed its Motion to Dismiss the Amended Complaint on the ground that the district court lacked personal jurisdiction. Attached to this motion was an affidavit of a Dikar executive. As another attachment to its motion, Dikar submitted a bill of lading indicating that Matt’s Buckmaster rifle was one of a ship- ment of 398 identical rifles, along with 3,175 other rifles, sent to CVA in the United States. Se NEN Le MORO es ORT ree eT es 3 At the time of this motion, only one deposition had been taken by any party in this case. This was a deposi- tion of Neill Stevens, Vice President of a claims adjusting - service retained by CVA. In the course of his deposition, Mr. Stevens disclosed thirteen other incidents which in- volved various similarities, including: 1. All involved a new or nearly new .50 caliber inline muzzle-loading rifle sold by CVA and manufactured by Dikar; 2. All involved barrel explosions, many involved seri- ous eye damage, and they occurred between September and December 1996; 3. Four of these other incidents occurred in Kentucky, three in Ohio, two in Virginia, two in Tennessee, one in Louisiana, and one in Michigan. Plaintiff responded to the motion to dismiss on the mer- its, citing the relevant law and the evidence as it was known at that time (App. 9a). On August 19, 1997, the district court denied Dikar’s motion for dismissal on jurisdictional grounds, saying that Dikar could renew its motion following the completion of “all discovery” (App. 4a). On August 26, 1997, Dikar filed its Motion for Modifi- cation of the August 19 Order, asking the district court to expressly limit discovery to jurisdictional issues. Dikar also asked for leave to take an interlocutory appeal of the earlier Order. On September 11, 1997, Plaintiff served his Response to Dikar’s Motion to Limit Discovery, pointing out the inef- ficiency of splitting the discovery, the discretionary nature of the district court’s ruling on scope of discovery, and the ultimate need for all the discovery from Dikar as part of Plaintiff's case against the other parties. On October 8, 1997, the district court entered an Order specifically denying Dikar’s motion for modification and - 4 specifically reaffirming its earlier Order “granting open discovery as opposed to limited discovery pertaining only to the personal jurisdiction issue.” The Order also refused to certify the issue for an interlocutory appeal (App. 5a). On December 17, 1997, the district court granted Plaintiffs motion to depose representatives of Dikar in Spain, pursuant to the Federal Rules of Civil Procedure (App. 7a). The order further provided that *. . . deponents’ responses in said depositions SHALL NOT be limited to questions concerning only jurisdictional issues... .” ARGUMENT A. Dikar is Not Entitled to Mandamus Because The District Court Has Ruled on Personal Jurisdiction Dikar’s entire factual premise for its Petition for Man- damus is incorrect, since the district court has properly ruled on and denied Dikar’s motion to dismiss for lack of personal jurisdiction. Dikar has suggested to this Court that Plaintiffs only response to Dikar’s motion to dismiss was that it was premature. This is incorrect. Plaintiffs Response of August 15, 1997, cited the applicable law and the available discovery (App. 9a). Plaintiffs response cited Sixth Circuit decisions as to personal jurisdiction under the Due Process Clause. Then Plaintiff argued that Dikar had met the requirements of personal jurisdiction, since it had manufactured hundreds of firearms for an American distributor, CVA, with the intention (according to Dikar’s own affidavit) that they be sold and used in the United States. Plaintiff recited the proof (in Dikar’s affidavit) tnat Dikar did not limit the states in which CVA could distribute the rifles. Plaintiff pointed out that CVA is the only company that distributes Dikar’s sporting guns in the U.S. (once again from Dikar’s affidavit) and that it received substantial profits from their 5 sale in Kentucky, as well as other states. Plaintiff argued the merits of the requirements of (a) purposeful availment, (b) actions in Kentucky, and (c) reasonableness of the exer- cise of jurisdiction. The proof, even at that time, showed that the motion should be denied on the merits. This is what the district court has clearly done. The district court’s order of August 19 states that the motion to dismiss was “denied.” It was not held in abeyance. The district court did not rule that the motion was premature. The court simply decided the issue before it. The district court had more than enough evidence on which to conclude that Dikar’s motion to dis- miss was without merit. In the absence of an evidentiary hearing, it is the district court’s duty to consider all proof on such a motion in the light most favorable to the plain- tiff, Nationwide Mutual Ins. Co. v. Tryg International Ins. Co., 91 F.3d 790, 793 (6% Cir. 1996), and the plaintiff need only make a prima facie showing of personal jurisdiction, International Technologies Consultants, Inc. v. Euroglas S.A., 107 F.3d 386, 391 (6% Cir. 1997). The district court’s ruling on the issue was further em- phasized on October 8, when the Court reaffirmed its Or- der and denied Dikar’s motion to specifically limit discov- ery to jurisdictional issues. Once again, the district court did not hold that the issue was in abeyance or was prema- ture; instead, it denied the motion. In short, Dikar has failed to show that it is clearly entitled to relief, since it cannot even demonstrate the ba- sic factual premise of its motion. The pleadings, proof and orders demonstrate that the district court has ruled on Dikar’s motion. Discovery on all issues should now pro- ceed under the Federal Rules of Civil Procedure. Societe Nationale Industrielle Aerospatiale v. U.S. District Court for the Southern District of Iowa, 482 U.S. 522, 542 (1987). 6 B. The Requirements of Mandamus Have Not Been Shown in This Case Even if Dikar were correct, and the district court had not yet decided the motion to dismiss for lack of personal jurisdiction, Dikar would not be entitled to mandamus. As the cases cited by the court of appeals panel pointed out, in denying Dikar’s mandamus petition, mandamus is not available to contro] the district court in the exercise of its discretionary duties. In re American President Lines, . Ltd., 929 F.2d 296, 227 (6" Cir. 1991); In re Post-Newsweek Stations, 722 F.2d 325, 329 (6* Cir. 1983). Here, the rul- ing of the district court to which Dikar objects is its order that the discovery methods under the Federal Rules of Civil Procedure may be used to take discovery from the Spanish manufacturer, both as to jurisdiction and as to the merits of this products liability case. This matter is part of the Court’s discretion in balancing the needs and rights of the parties in pre-trial discovery activity. The scope of discovery is within the Court’s discretion. Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6" Cir 1981), cert. denied, 454 U.S. 893 (1981); Theunissen v. Matthews, 935 F.2d 1454, 1465 (6" Cir. 1991). A District Court need not limit discovery to jurisdictional questions. The Court’s discretion to limit discovery is discussed in 8 Wright & Miller, Federal Practice and Procedure §2040 p.521 (1994): Ever since the days of the former equity bill for dis- covery there has been applied to discovery “the prin- ciple of judicial parsimony,” by which, when one issue may be determinative of a case, the court has discre- tion to stay discovery on other issues until the critical issue has been decided. In accordance with this prin- ciple — a salutary principle if it is applied sparingly and with real discretion rather than as an absolute rule — a court may decide that in a particular case it would be wise to stay discovery on the merits until me 7 challenges to jurisdiction have been resolved. [Em- phasis added.]} This discretionary decision of the district court should not be disrupted by piecemeal appeals such as this one. The panel’s cited cases also make it clear that manda- mus is generally not available to review discovery orders. Warden, Kentucky State Penitentiary v. Gall, 865 F.2d 786, 788-9 (6" Cir. 1989); City of Cleveland v. Krupansky, 619 F.2d 572, 575 (6% Cir.) cert. denied, 449 U.S. 834 (1980). There is a recognized exception where discovery raises ques- tions of unusual importance necessary to the economical and efficient administration of justice. Here, all those con- siderations of economy and efficiency all support the dis- trict court’s ruling. In its Petition, Dikar concedes that it is proper to use the federal discovery rules to address the issue of jurisdic- tion. However, it objects to Plaintiff asking, in the same discovery procedure, whether it be a deposition or inter- rogatories or requests for documents, other questions con- cerning the exploding rifle. These matters would include the rifle’s blueprints, design, material specifications, test- ing, and the like. For the sake of economy and efficiency, this should be done at the same time Plaintiff's counsel are in Spain questioning Dikar’s representatives as to its con- tacts with other Defendants, contacts with other entities in the United States, a study prepared for Dikar discuss- ing the United States market for muzzle-loading rifles (pro- duced in discovery), and other efforts to market its rifles in this country. The logistics of a single trip to Spain for depositions of knowledgeable Dikar representatives will be expensive and time-consuming. To force Matt Haymaker to engage in two such trips is to unfairly punish him, since he can less easily afford these expenses than an insurer or the corpo- rate defendants. This burden is unreasonable for this plain- 8 tiff and for those plaintiffs in the many other injury inci- dents which have been identified. It would be a massive waste of judicial resources, and an intimidating doubling of a plaintiffs expenses and ef- fort, to permit every case where lack of jurisdiction is pled to include: (1) adiscovery stage for jurisdiction, (2) a hearing stage for jurisdiction, (3) an appellate stage for jurisdiction, followed by (4) adiscovery stage on the merits, then (5) atrial stage on the merits, and then (6) an appellate stage on every other matter not raised earlier. Yet this is exactly what Dikar seeks. It should not be permitted, under the principle of F.R.C.P. 1, which directs that the rules “. . . shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.” The real motives of Dikar are delay and denial of dis- covery to the Plaintiff. In discovery responses, Dikar has asserted the joint defense privilege, based on its coopera- tion with Defendant Connecticut Valley Arms. The delay is designed to impede the Plaintiffs access to discovery which is critical to the case against both Defendants. This includes the basic design, materials specifications, and test- ing for the rifle. On all of these issues, the U.S. distributor CVA claims ignorance. Delay and denial prevent this case from going forward, and delays all the other cases against CVA and Dikar as well. | 9 CONCLUSION This Court should deny the Petition for Certiorari filed by the Petitioner Dikar, S. Coop. LTDA. June 17, 1998 Respectfully submitted, PETER PERLMAN PrTeR PERLMAN Law Orricss, P.S.C. 388 South Broadway Lexington, Kentucky 40508 (606) 253-3919 Attorney for Respondent APPENDIX AF hh el? i i a le ET ak eT : : ; : : :