IceMOS Technology Corporation v. Omron Corporation

MOTION to Strike 69 MOTION for Judgment on the Pleadings

D. Ariz.December 5, 2018

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Nicole Goodwin (SBN 024593) GREENBERG TRAURIG, LLP 2375 East Camelback Road, Suite 700 Phoenix, Arizona 85016 Tel.: (602) 445-8000 goodwinn@gtlaw.com Matthew A.C. Zapf (pro hac vice), (IL ARDC # 6197084) Jonathan H. Claydon (pro hac vice), (IL ARDC # 6289235) Brett M. Doran (pro hac vice), (IL ARDC # 6286057) GREENBERG TRAURIG, LLP 77 West Wacker Drive, Suite 3100 Chicago, Illinois 60601 Tel.: (312) 456-8400 zapfm@gtlaw.com claydonj@gtlaw.com doranb@gtlaw.com Attorneys for Defendant Omron Corporation IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA IceMOS Technology Corporation, Plaintiff/Counter-Defendant, v. Omron Corporation, Defendant/Counter-Plaintiff. Case No. 2:17-cv-02575-JAT DEFENDANT/COUNTER- PLAINTIFF OMRON CORPORATION’S MOTION TO STRIKE PLAINTIFF’S RULE 12(C) MOTION FOR JUDGMENT ON THE PLEADINGS Defendant/Counter-Plaintiff Omron Corporation (“Omron”) respectfully moves the Court to strike Plaintiff/Counter-Defendant IceMOS Technology Corporation’s (“IceMOS”) Rule 12(c) Motion for Judgment on the Pleadings filed on November 30, 2018 (ECF No. 69, the “Motion”) pursuant to District of Arizona Local Rules of Civil Procedure 7.2(m)(1) and 12.1(c). Local Rule 12.1(c) provides, in relevant part: No [] motion for judgment on the pleadings on a claim or counterclaim, pursuant to Federal Rule of Civil Procedure 12(c), will be considered or decided unless the moving party includes a certification that, before filing the motion, the movant notified the opposing party of the issues asserted in the motion and the parties were unable to agree that the pleading was curable in Case 2:17-cv-02575-JAT Document 72 Filed 12/05/18 Page 1 of 7 DEFENDANT/COUNTER-PLAINTIFF OMRON CORPORATION’S MOTION TO STRIKE PLAINTIFF’S RULE 12(C) MOTION FOR JUDGMENT ON THE PLEADINGS 2 LA W OF FI CE S G R EE N B ER G T R A U R IG 23 75 EA ST CA ME LB AC K R OA D, SU IT E 7 00 PH OE NI X, AR IZ ON A 8 50 16 (6 02 ) 4 45 ‐8 00 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 any part by a permissible amendment offered by the pleading party. The movant may comply with this rule through personal, telephonic, or written notice of the issues that it intends to assert in a motion. A motion that does not contain the required certification may be stricken summarily. LRCiv 12.1(c). IceMOS’s Motion does not meet any of the requirements of Local Rule 12.1(c). IceMOS failed to: (1) include the required certification; (2) notify Omron of the issues asserted in its Motion; and (3) discuss with Omron an amendment that could address the counterclaims’ ostensible deficiencies. This is yet another example of IceMOS’s recurring disregard for both the District of Arizona’s Local Rules and the unambiguous discovery dispute procedures utilized by this Court.1 Omron respectfully submits that in addition to its legal infirmities, the Motion should be stricken and denied for IceMOS’s failure to comply with Local Rule 12.1(c). ARGUMENT 1. IceMOS’s Motion undeniably fails to comply with Local Rule 12.1(c), as it does not contain the required certification. (See ECF No. 69.) The Motion, therefore, cannot be “considered or decided.” LRCiv 12.1(c). Omron expects that IceMOS may, in response to this motion to strike, try to explain away its flouting of the Court’s Local Rules by claiming that it did confer with Omron about a motion attacking Omron’s fraudulent inducement counterclaim by sending a Rule 11 safe harbor letter on September 24, 2018 and subsequent correspondence concerning IceMOS’s draft Rule 11 motion. But those communications never mentioned any intent to file a Rule 12(c) motion for judgment on the pleadings and did not raise any issues with respect to Omron’s other counterclaims.2 1 See also Def’s Br. Regarding Discovery Disputes (ECF No. 67) at 2-3 (describing counsel for IceMOS’s violation of the Court’s Rule 16 Scheduling Order). 2 Prior to filing its Motion, and contrary to footnote 7 of the Motion, IceMOS did not raise the issues asserted in its Motion concerning Omron’s counterclaims for breach of implied covenant of good faith and faith dealing (Counterclaim Count I) and breach of contract for failure to timely make payments (Counterclaim Count II). Case 2:17-cv-02575-JAT Document 72 Filed 12/05/18 Page 2 of 7 DEFENDANT/COUNTER-PLAINTIFF OMRON CORPORATION’S MOTION TO STRIKE PLAINTIFF’S RULE 12(C) MOTION FOR JUDGMENT ON THE PLEADINGS 3 LA W OF FI CE S G R EE N B ER G T R A U R IG 23 75 EA ST CA ME LB AC K R OA D, SU IT E 7 00 PH OE NI X, AR IZ ON A 8 50 16 (6 02 ) 4 45 ‐8 00 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. On October 16, 2018, Omron sent its response to the September 24, 2018 letter in the time allotted under Rule 11. (See October 16, 2018 letter attached hereto as Exhibit 1.) Therein, Omron explained to IceMOS that, after reviewing the applicable law and facts, Omron maintained its good faith belief that its counterclaim for fraudulent inducement was well-pleaded. 3. Mr. Shore responded via email three hours after Omron sent its response letter on October 16, 2018. (See October 16, 2018 email attached hereto as Exhibit 2.) Mr. Shore stated in his email that Omron “stepped right into the trap” and that the “Rule 12(b)(6) will be filed first.” (Id.) Once again, nowhere did Mr. Shore mention any intent to file a Rule 12(c) motion for judgment on the pleadings or raise any issues with Omron’s other counterclaims. 4. Plainly, therefore, IceMOS failed to comply with Local Rule 12.1(c). Further, in its current context, IceMOS’s violation of the Local Rules is no mere technical violation. As it pertains to Omron’s counterclaim for fraudulent inducement, IceMOS’s Motion relies in large part on IceMOS’s interpretation of Omron’s answer to a single allegation in IceMOS’s 264-paragraph pleading. 5. In particular, IceMOS argues that Omron has essentially admitted away its fraudulent inducement counterclaim by virtue of Omron’s response to Paragraph 73 of the Second Amended Complaint, which states, “The Supply Agreement contains no representations, promises, or guarantees by IceMOS as to demand or minimum monthly purchases.” (Motion at p. 7.) Omron intended this admission to mean that the Supply Agreement does not contain a requirement that IceMOS purchase a certain amount of Super Junction MOSFETs per month.3 3 Omron’s interpretation of the meaning of Paragraph 73 is supported by Omron’s answer to the very next paragraph, where it admitted IceMOS’s allegation that “Exhibit A to the Supply Agreement contains a demand forecast through the fourth quarter of 2012.” (ECF No. 60 at ¶ 74.) This is consistent with Omron’s allegation in its counterclaims that the forecasts referenced in the Supply Agreement—in the preamble and Exhibit A—were included in the Supply Agreement “[b]ased on IceMOS’s representations.” (ECF No. 28, Countercl. at ¶¶ 10-11.) Case 2:17-cv-02575-JAT Document 72 Filed 12/05/18 Page 3 of 7 DEFENDANT/COUNTER-PLAINTIFF OMRON CORPORATION’S MOTION TO STRIKE PLAINTIFF’S RULE 12(C) MOTION FOR JUDGMENT ON THE PLEADINGS 4 LA W OF FI CE S G R EE N B ER G T R A U R IG 23 75 EA ST CA ME LB AC K R OA D, SU IT E 7 00 PH OE NI X, AR IZ ON A 8 50 16 (6 02 ) 4 45 ‐8 00 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. IceMOS, attempting to generate a pure “gotcha” argument, now argues that this admission means that Omron has admitted that there is no representation underlying its fraudulent inducement claim. (See id.) This is, of course, incorrect as a matter of law and as a matter of fact. 7. As a matter of Arizona law, a representation that forms the basis for a claim of fraudulent inducement necessarily occurs prior to the formation of the contract. See Morris v. Achen Const. Co., Inc. 155 Ariz. 512, 514 (1987). In Morris, the Arizona Supreme Court held: “It is clear that the tort of fraudulently inducing one to enter into a contract can be committed without there also being a breach of the contract itself. Indeed, the tort of fraudulent inducement would necessarily be completed before a breach of the contract could occur.” Id. (citing Restatement (Second) of Contracts § 167 (1981)). 8. For the purposes of Omron’s fraudulent inducement claims, the representations that matter are those alleged to have been made prior to formation of the Supply Agreement. Here, Omron expressly alleges in its counterclaim that IceMOS made representations to Omron “[w]hile the parties were negotiating the Supply Agreement” and “[d]uring negotiations” of the monthly demand that existed in the market for Super Junction MOSFETs. (See ECF No. 28, Countercl. at ¶¶ 63-64.) Consequently, even crediting IceMOS’s argument in the Motion, an admission by Omron in response to Paragraph 73 of the Second Amended Complaint regarding the contents of the Supply Agreement itself could not possibly negate Omron’s separate allegations of misrepresentations in the negotiations, misrepresentations that occurred prior to the execution of the contract. 9. In any event, had IceMOS reached out to Omron and conferred regarding the answer to Paragraph 73 as required by Local Rule 12.1(c), Omron would have explained its position and perhaps the parties could have reached an agreement that would have avoided the necessity of the current motion. Of course, IceMOS did not comply with Local Rule 12.1(c). And although Omron submits that its response to Paragraph 73 Case 2:17-cv-02575-JAT Document 72 Filed 12/05/18 Page 4 of 7 DEFENDANT/COUNTER-PLAINTIFF OMRON CORPORATION’S MOTION TO STRIKE PLAINTIFF’S RULE 12(C) MOTION FOR JUDGMENT ON THE PLEADINGS 5 LA W OF FI CE S G R EE N B ER G T R A U R IG 23 75 EA ST CA ME LB AC K R OA D, SU IT E 7 00 PH OE NI X, AR IZ ON A 8 50 16 (6 02 ) 4 45 ‐8 00 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 supports neither IceMOS’s apparent view of Omron’s answer nor the relief IceMOS seeks in its Motion, Omron respectfully requests—out of an abundance of caution—that the Court grant it leave to amend its answer to Paragraph 73 as follows: Omron denies any allegations in Paragraph 73 inconsistent with the language of the Supply Agreement, which speaks for itself. Answering further, Omron admits only that the Supply Agreement does not contain any provision requiring minimum monthly purchases by IceMOS. Omron denies that the Supply Agreement contains no representations as to demand for Super Junction MOSFETs, as both the “Background” preamble and Exhibit A reflect the forecast representations made by IceMOS. 10. By itself, IceMOS’s violation of the Local Rules warrants the Court’s striking of the Motion. See Cutler v. Pima Cty., No. 18-CV-00383-TUC-FRZ, 2018 U.S. Dist. LEXIS 137372, at *4, *4 n.12, *5 (D. Ariz. Aug. 13, 2018) (striking a defendant’s reply in support of a motion to dismiss where defendant failed to comply with Local Rule 3.6(c), and citing Local Rule 12.1(c) in ordering that any motion to dismiss “will be perfunctorily denied” if it is filed absent notice to the Court that the parties conferred, prior to moving for dismissal, on the rules governing amendments to pleadings); see also Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (“Failure to follow a district court’s local rules is a proper ground for dismissal”). 11. Rule 12.1(c) explicitly provides that “[n]o [] motion for judgment on the pleadings [] will be decided or considered” if it is filed without the requisite certification. LRCiv 12.1(c). Here, IceMOS filed no such certification because no meet and confer occurred, which could have avoided this motion practice. To be sure, IceMOS’s stated intent in using the Rule 11 safe harbor process was to spring the “trap” referenced in Mr. Shore’s October 16, 2018 email rather than to meet and confer. But the fact remains that IceMOS’s Motion should be stricken for failure to comply with Local Rule 12.1(c). WHEREFORE, in light of the foregoing, Omron respectfully requests that the Court: (1) grant this motion; (2) enter an Order striking IceMOS’s Rule 12(c) Motion for Judgment on the Pleadings; (3) enter an Order authorizing Omron to amend its answer to Case 2:17-cv-02575-JAT Document 72 Filed 12/05/18 Page 5 of 7 DEFENDANT/COUNTER-PLAINTIFF OMRON CORPORATION’S MOTION TO STRIKE PLAINTIFF’S RULE 12(C) MOTION FOR JUDGMENT ON THE PLEADINGS 6 LA W OF FI CE S G R EE N B ER G T R A U R IG 23 75 EA ST CA ME LB AC K R OA D, SU IT E 7 00 PH OE NI X, AR IZ ON A 8 50 16 (6 02 ) 4 45 ‐8 00 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Paragraph 73 of the Second Amended Complaint as set forth above; and (4) enter any further relief that this Court deems just and reasonable. Alternatively, if this Court does not strike IceMOS’s Motion, Omron requests that it be given fourteen (14) days to respond to the Rule 12(c) Motion for Judgment on the Pleadings from the date that the Court issues its Order on this motion to strike. RESPECTFULLY SUBMITTED this 5th day of December, 2018. GREENBERG TRAURIG, LLP By: /s/ Brett M. Doran Nicole M. Goodwin Matthew A.C. Zapf* Jonathan H. Claydon* Brett M. Doran* *Pro Hac Vice Attorneys for Defendant Omron Corporation Case 2:17-cv-02575-JAT Document 72 Filed 12/05/18 Page 6 of 7 DEFENDANT/COUNTER-PLAINTIFF OMRON CORPORATION’S MOTION TO STRIKE PLAINTIFF’S RULE 12(C) MOTION FOR JUDGMENT ON THE PLEADINGS 7 LA W OF FI CE S G R EE N B ER G T R A U R IG 23 75 EA ST CA ME LB AC K R OA D, SU IT E 7 00 PH OE NI X, AR IZ ON A 8 50 16 (6 02 ) 4 45 ‐8 00 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I hereby certify that on December 5, 2018, I caused the foregoing Defendant/Counter-Plaintiff Omron Corporation’s Motion to Strike Plaintiff’s Rule 12(c) Motion for Judgment on the Pleadings to be served, via the Court’s ECF filing system, on the following counsel: Robert D. Atkins PATENT LAW GROUP: Atkins and Associates, P.C. 55 North Arizona Place, Suite 104 Chandler, Arizona 85225 main@plgaz.com Michael W. Shore Alfonso G. Chan Paul T. Beeler Andrew M. Howard Shukri Abdi SHORE CHAN DEPUMPO LLP 901 Main Street, Suite 3300 Dallas, Texas 75202 mshore@shorechan.com achan@shorechan.com pbeeler@shorechan.com ahoward@shorechan.com sabdi@shorechan.com /s/ Brett M. Doran Case 2:17-cv-02575-JAT Document 72 Filed 12/05/18 Page 7 of 7