Rene Schonefeld Industrie v. Jamil
Defendants who file a motion to dismiss on the basis of lack of jurisdiction and proceed to participate in discovery do not waive their right to protest jurisdiction. The plaintiffs filed a complaint, alleging that the defendants infringed their trademark for Three Kings charcoal, in violation of the Lanham Act, and served requests for admissions and document production. The pro se defendants, who reside in California, filed a motion to dismiss, objected to the requests for admissions and to deposition requests on the basis of lack of jurisdiction, and did not respond to the requests for document production. The plaintiffs filed a motion to compel, and the defendants did not file a response. One of the defendants did not comply with the court's order to participate in a conference call. The court rejected the defendants' argument that they are not required to respond to discovery or to participate in litigation until the court rules on the motion to dismiss. Defendants who object to jurisdiction can participate in the litigation without waiving the objection, pursuant to the Southern District of New York's 1989 decision, Michelson v. Merrill Lynch, Pierce, Fenner & Smith Inc. The court did not order any sanctions. The court denied the plaintiffs' motion to deem admitted the requests for admission. The court ordered the defendants to file answers to discovery requests, on or before Nov. 30, 2012. The court ordered the parties to cooperate to schedule depositions at convenient times and the defendants to appear at the depositions. The court reminded the defendants that failure to comply with discovery orders may result in sanctions.