Nucap Indus., Inc. v. Robert Bosch LLC

NUCAP INDUSTRIES, INC., and NUCAP US, INC., Plaintiffs, v. ROBERT BOSCH LLC, et al. Defendants.

Case No. 15 C 2207

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

August 18, 2017

Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

Almost fourteen months after it answered the first amended complaint, Robert Bosch GmbH ("Bosch GmbH") filed a motion to dismiss for lack of personal jurisdiction. "Unlike subject matter jurisdiction, personal jurisdiction can be waived at any time by express submission, conduct or failure to assert the defense." United States v. Chapel, 956 F.2d 272, 1992 WL 42326, at *2 (7th Cir. 1992) (table decision) (citing Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 704 (1982)). The Seventh Circuit has held that one way to submit to personal jurisdiction is to "cause the court to go to some effort that would be wasted if personal jurisdiction is subsequently found lacking." Hedeen Int'l, LLC v. Zing Toys, Inc., 811 F.3d 904, 906 (7th Cir. 2016) (citing H-D Mich., LLC v. Hellenic Duty Free Shops S.A., 694 F.3d 827, 848 (7th Cir. 2012)). Bosch GmbH admits in its reply that it waited so long in part to see how the court would rule on the plaintiffs' motion for preliminary injunction, believing that the ruling could have disposed of at least some of the claims against it. (ECF No. 795 at 13 n.5.) Because a preliminary injunction ruling would have been wasted on Bosch GmbH without personal jurisdiction, it submitted to this court's jurisdiction by waiting for that ruling and by its other litigation conduct. The court therefore denies the motion.

I. BACKGROUND

A. The Parties

Nucap Industries Inc. ("Nucap Industries") is a Canadian corporation with its principal place of business in Toronto. (1st Am. Compl. ¶ 24, ECF No. 239 ("FAC").) Nucap US Inc. ("Nucap") is a Connecticut corporation with its principal place of business in Connecticut. (Id. ¶ 25.) Nucap is an indirect, wholly-owned subsidiary of Nucap Industries. (Id.)

Bosch GmbH "is a limited liability company organized under the laws of Germany" with a principal place of business in Stuttgart, Germany. (Id. ¶ 28.) Bosch GmbH is the indirect parent of two corporations organized under the laws of Delaware: Robert Bosch, LLC ("Bosch LLC") and Bosch Brake Components, LLC ("Bosch Brake"). (See id. at 1 (introductory paragraph) & ¶¶ 26-27, 28.) Both keep their principal place of business in Broadview, Illinois. (Id. ¶¶ 26-27.) Nucap refers to these two companies collectively as "Bosch" in its amended complaint, but the court follows the parties' lead in their briefing and uses the short form "Bosch U.S." here because it is slightly less confusing. Bosch GmbH also has subsidiaries, which it indirectly owns, in China (collectively "Bosch China") and Mexico (collectively "Bosch Mexico"). (See id. ¶ 28.)

B. Nucap's Allegations and Claims

In late 2008 or early 2009, Bosch GmbH and Bosch U.S. began making and selling aftermarket brake pads, that is, brake pads to replace the pads installed by the original manufacturer of a vehicle. (See FAC ¶¶ 1-6, 10, 64, 66-69.) Nucap designs and manufactures components of aftermarket pads, such as shims and backing plates. (See id. ¶¶ 3, 7-9, 43-44.) Bosch U.S. began purchasing brake pad components from Nucap in late 2008 or early 2009, but that relationship skidded to a halt in late 2014. (See id. ¶¶ 76, 93-98.) Nucap's misappropriationclaims concern Bosch's alleged subsequent use of a database of drawings of brake components Nucap claims to have spent hundreds of millions of dollars creating. (Preliminary Injunction Hearing Transcript ("Hr'g Tr.") at 78:5-78:23, 79:16-80:3, 218:24-219:17 (testimony of Nucap's Chief Executive Officer), ECF Nos. 531, 536.)

In their briefing on the instant motion, the parties sort the seven counts pleaded in the FAC into two broad groups. The first group, Counts I-III, consists of Nucap's drawing-related claims. Nucap brings these claims against Bosch U.S. (FAC ¶¶ 100-31.) Nucap alleges that "Bosch wrongfully misappropriated Nucap's library of confidential and proprietary drawings with tolerances and specifications ('drawings') for aftermarket brake components." (Id. at 1.) Nucap claims Bosch U.S. improperly disclosed Nucap's trade-secret- and copyright-protected drawings to other suppliers by misusing the drawings to qualify replacement parts and improperly altering copyright-management information on the drawings. (Id. ¶¶ 103, 105, 111-12, 125-26, 150, 156.) "Bosch and Bosch GmbH collaborated on the de-sourcing of Nucap with Bosch disclosing and misusing Nucap's drawings to qualify and approve replacement suppliers," according to Nucap's amended complaint. (Id. ¶ 70.)

Nucap's Trelleborg-related claims in Counts IV-VII, which are pleaded against all defendants, including Bosch GmbH, comprise the second group. According to the FAC, Nucap had an exclusive agreement with a group of companies referred to collectively as Trelleborg to supply shims, some of which Nucap and Trelleborg codeveloped, made of "advanced steel-rubber composite material." (Id. ¶ 21; see also id. ¶¶ 14-15, 21-22, 87-88.) Nucap alleges that Bosch and Bosch GmbH "intentionally interfered with Nucap's exclusive agreement with Trelleborg to divert shim materials from Nucap to alternative third-party manufacturers." (Id. ¶ 1.) Nucap claims that Bosch GmbH "reached out directly to [Trelleborg], demanded that theysupply Trelleborg Shim Composites to Bosch's replacement suppliers, and threatened existing business with Trelleborg if their demands were not met." (Id. ¶ 135; see also id. ¶¶ 88, 141, 150, 156.) Bosch and Bosch GmbH, Nucap alleges, "work[ed] to de-source Nucap by moving the supply of brake components from Nucap to third party manufacturers willing to supply inferior and low-cost components." (Id. ¶ 69.) Nucap pleads the following claims against Bosch U.S. and Bosch GmbH: tortious interference with contract, tortious interference with prospective economic advantage, unfair competition, and unjust enrichment. (Id. ¶¶ 132-58.)

C. Pertinent Procedural History

1. Discovery Involving Bosch U.S. Commences Based on the Original Complaint (Mar. 2015-Feb. 2016)

Nucap filed its initial complaint on March 12, 2015, naming Bosch U.S. as defendants. (ECF No. 1 at 1.) Bosch U.S. moved to stay the case and compel the parties to arbitration (ECF No. 42) but the court denied that motion on July 1, 2015 (ECF No. 63; see also Nucap Indus. Inc. v. Robert Bosch LLC, No. 15-cv-2207, 2015 WL 4038714 (N.D. Ill. July 1, 2015)). Nucap and Bosch U.S. then submitted an initial discovery plan after conducting an initial discovery conference. (See ECF No. 64.) The court held a status conference on July 10, 2015. (See Minute Entry, ECF No. 65; Tr., ECF No. 69.) At that conference, the court denied Nucap's request for expedited discovery and referred this case to the Honorable Young B. Kim to manage discovery and rule on related, nondispositive matters. (See Referral Order, ECF No. 66; see also 28 U.S.C. § 636(b)(1)(A).)

Discovery began later in July 2015. (See Minute Entry, July 23, 2015, ECF No. 72.) But on August 21, 2015, Judge Kim ordered Nucap and Bosch U.S. to obtain leave of court before propounding further discovery. (Minute Entry, Aug. 21, 2015, ECF No. 86.) The next few months saw Nucap and Bosch U.S. engage in substantial discovery litigation primarily beforeJudge Kim. That practice included disputes over requests for electronically stored information ("ESI"). (See, e.g., Minute Entries of Oct. 28 & Nov. 17, 2015, ECF Nos. 130, 164.) This period of discovery culminated in the filing on January 5, 2016, of Nucap's motion for leave to file its FAC adding Bosch GmbH as a defendant. (ECF No. 194.) Nucap and Bosch U.S. stipulated to the granting of that motion later that month on January 29, 2016. (ECF No. 218; see also ECF No. 237 (order granting motion).)

2. Nucap Adds Bosch GmbH and Exchanges a First Round of Discovery Requests with It (Feb.-June 2016)

Bosch GmbH answered the FAC on March 21, 2016. (Bosch GmbH Answer and Affirmative Defenses, ECF No. 327.) It responded to Nucap's allegation that this court has personal jurisdiction by stating that it lacked sufficient information to form a belief about the truth or falsity of the allegation. (Id. ¶¶ 32-33.)

On March 29, 2016, Nucap asked Judge Kim for leave to propound requests for production of documents to Bosch GmbH. (Mot. Leave Serve Disc., ECF NO. 363; see also id. ¶ 3 (noting that Bosch GmbH's counsel took no position on the motion).) In his minute entry granting that motion, Judge Kim observed that his August 2015 order requiring the court's permission before propounding written discovery did not apply to Bosch GmbH because it was not yet a party in August 2015. (Minute Entry, Apr. 6, 2016, ECF No. 390.) Judge Kim therefore directed Nucap and Bosch GmbH to conduct a Rule 26(f) conference and propose a discovery plan. (Id.)

Bosch GmbH moved for leave to amend its answer on April 22, 2016. (ECF No. 420.) The court granted that motion. Bosch GmbH's amended answer specifically pleads lack of personal jurisdiction as an affirmative defense. (Bosch GmbH Am. Answer and Affirmative Defenses ¶¶ 12-13, ECF No. 420-1.) On the same day Bosch GmbH requested permission toamend its answer, Nucap and Bosch GmbH submitted a joint report on their Rule 26(f) conference and discovery plan. (ECF No. 419.) Bosch GmbH repeatedly took the position in that report that the court lacks personal jurisdiction over it. (E.g., Joint Rule 26(f) Report 3, 6, ECF No. 419.) The parties proposed a schedule for discovery, to which Bosch GmbH agreed "[i]n the event that jurisdiction over Bosch GmbH is found to exist." (Id. at 7.)

On May 13, 2016, Bosch GmbH made the initial disclosures required by Rule 26(a) to Nucap. It identified four Bosch GmbH executives with knowledge of Nucap's Trelleborg-related claims. (See Decl. of Michelle Yang Supp. Nucap...