FS Medical Supplies, LLC v. TannerGAP, Inc. et al

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IN THE UNITED STATES DISTRICT COURT = = rsielLED —
FOR THE WESTERN DISTRICT OF NORTH CAROLINA ~ ENG is
CHARLOTTE DIVISION MAR 24 20230

3:21-cv-00501-RJC-WCM U.S. DISTRIC
W. DISTRICT OF hee

FS MEDICAL SUPPLIES, LLC,

Plaintiff, ORDER

v.
TANNER PHARMA UK LIMITED;
RAYMOND FAIRBANKS BOURNE;
and, STEPHEN JOHN SCALIA

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TANNERGAP, INC.; )
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Defendants. ‘

This matter is before the Court for case management purposes and on
Plaintiff's Request for Status Conference (the “Request for Status Conference,”

Doc. 91).
I. Status Conference

The docket reflects that, in addition to the Request for Status

Conference, the following motions are pending:

« Rule 12(b)(2) Motion to Dismiss Amended Complaint (the
“Personal Jurisdiction Motion,” Doc. 62) filed by Tanner Pharma
UK Limited (“Tanner UK”);

e Rule 12(b)(6) Motions to Dismiss filed by Tanner UK, TannerGAP,
Inc., John Scalia, and Raymond Fairbanks Bourne. Docs. 65, 67,
69, 71; and

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ee 3:21-cv-00501-MR-WCM Document 92_ Filed 03/24/23 Page 1 of 4

e Plaintiff's “Request for Oral Argument and Evidentiary Hearing
on Jurisdictional Issue” (the “Motion for Evidentiary Hearing,”
Doc. 79).

The undersigned agrees that a status conference may be helpful for case
management purposes and therefore Plaintiffs Request for Status Conference
will be allowed.

However, to the extent the Request for Status Conference suggests that
Plaintiff or other parties wish to conduct early “limited merits discovery,” the
undersigned notes that no motion requesting leave to conduct early discovery
has been filed, and therefore that issue is not properly before the Court.

The parties are free to conduct early discovery, either on a voluntary
basis or otherwise as allowed by the Rules of Civil Procedure. Beyond that, any
party that wishes to conduct early court-enforced discovery may file a motion
seeking leave to do so, provided that no such motion should be filed until
counsel have fully conferred and attempted to reach agreement without the
need for court intervention.

To assist with the prompt resolution of any such motions (should they be
necessary), the undersigned will set a briefing schedule for those issues.
Further, the parties are advised that if a hearing on any motion relative to
early discovery is needed, the Court would expect to conduct that hearing at

the same time as the status conference.

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Case 3:21-cv-00501-MR-WCM Document 92 Filed 03/24/23 Page 2 of 4

II. Request for Evidentiary Hearing
The Court additionally finds that a hearing on the Motion for
Hividentiary Hearing should be scheduled, specifically for the parties to address
in further detail the question of whether the presentation of evidence
concerning jurisdictional issues is necessary and, if so, what the parties would
propose those presentations entail, bearing in mind that any such evidence
should not be cumulative and should be strictly limited to matters relevant to

the Personal Jurisdiction Motion. See Sneha Media & Entertainment, LLC v.

Associated Broadcasting, 911 F.8d 192, 197 (4th Cir. 2018) Gvhen the parties

develop the record before trial and the court conducts a hearing at which the
parties are afforded a fair opportunity to present both the relevant
jurisdictional evidence and their legal arguments — ie., an “evidentiary
hearing,”... — the plaintiff must carry the burden to establish personal
jurisdiction by a preponderance of the evidence...”) Gnternal citations omitted);

Grizzard v. LG Chem Ltd., --- F.Supp.3d ----, 2022 WL 17076706, at *4 n. 10

(—.D. Va. Nov. 18, 2022) Moting that not all evidentiary hearings involve
evidence taken orally in open court and finding that “the jurisdictional
discovery conducted by the Parties and the presentation of evidence to this
court in the thorough submissions, with supporting documentation...and

accompanying text, satisfies the ‘evidentiary hearing’ requirement”).

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Case 3:21-cv-00501-MR-WCM Document 92 Filed 03/24/23 Page 3of4

IT IS THEREFORE ORDERED THAT:
1. Plaintiff's Request for Status Conference (Doc. 91) is GRANTED, and the
Clerk is RESPECTFULLY DIRECTED to schedule a status conference.
2. With respect to early court-enforced discovery:

a. Any motion seeking leave to conduct early court-enforced
discovery, beyond that allowed by the Rules, shall be filed on or
before March 31, 2023 and shall be limited to ten pages.

b. Any response shall be filed on or before April 7, 2023 and shall be
lumited to five pages.

ce. Any reply shall be filed on or before April 12, 2023 and shall be
limited to two pages.

3. The Clerk is RESPECTFULLY DIRECTED to schedule a hearing on
Plaintiffs “Request for Oral Argument and Evidentiary Hearing on

Jurisdictional Issue” (Doc. 79), for the purpose stated herein.

This the 24th day of March, 2023.

W. Carleto etealf
United States Magistrate Judge

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Case 3:21-cv-00501-MR-WCM Document 92 Filed 03/24/23 Page 4of4