Ori, Inc. v. Lanewala
| Decision Date | 07 June 2001 |
| Docket Number | No. 99-2402-JWL.,99-2402-JWL. |
| Citation | 147 F.Supp.2d 1069 |
| Parties | ORI, INC., Plaintiff, v. Yusuf LANEWALA, Defendant. |
| Court | U.S. District Court — District of Kansas |
Bruce D. Mayfield, Mayfield Law Office, Overland Park, KS, for Plaintiff.
Kristopher C. Kuckelman, Lowe, Farmer, Bacon & Roe, Olathe, KS, for Defendant.
In this diversity action, ORI, Inc. ("ORI"), a Delaware corporation with its principal office in Overland Park, Kansas, brings suit against Mr. Yusuf Lanewala, a resident of India and the former Chief Executive Officer of ORI's Indian subsidiary, Mafatlal Consultancy Services, Inc. ("MCS"), challenging Mr. Lanewala's actions following his resignation from employment with MCS. ORI alleges that after leaving MCS, Mr. Lanewala hired or attempted to hire ORI employees, thereby making Mr. Lanewala liable for (1) breaching a protective covenant provision in his employment contract with ORI, (2) tortiously interfering with the contracts entered into by such solicited employees and ORI, (3) tortiously interfering with ORI's prospective economic advantage to be gained by the solicited employees' work for ORI's clients, and (4) tortiously interfering with ORI's business relations. ORI further alleges that Mr. Lanewala failed to return certain company property upon his resignation, thereby making him liable for conversion of such property. Mr. Lanewala denies ever having entered into an employment contract with ORI, and contends that, in any event, ORI has presented no evidence demonstrating that Mr. Lanewala ever solicited ORI employees. Mr. Lanewala further contends that ORI's conversion claim is barred under the doctrine of res judicata by a suit between the parties litigated in the courts of India.
The parties have filed a number of motions which are currently pending before the court. First, Mr. Lanewala has filed a motion to dismiss for lack of jurisdiction (Doc. 157). Second, both parties have moved for summary judgment (Docs. 161 & 167). Third, Mr. Lanewala has filed two motions requesting leave to file additional evidence to support his summary judgment motion (Docs. 163 & 164). Fourth, Mr. Lanewala has filed two motions requesting leave to add a forum non conveniens argument to his summary judgment motion (Docs. 170 & 171). Finally, Mr. Lanewala has filed two motions for leave to amend the Pretrial Order (Docs. 187 and 188).
As discussed in detail below, the court denies Mr. Lanewala's motion to dismiss for lack of jurisdiction, grants Mr. Lanewala's motions for leave to file additional evidence in support of summary judgment, denies Mr. Lanewala's motions for leave to add a forum non conveniens argument to his motion for summary judgment, enters summary judgment in favor of Mr. Lanewala and against ORI, and denies Mr. Lanewala's motions for leave to amend the Pretrial Order.
ORI is an information technology consulting firm incorporated in Delaware and having its principal place of business in Kansas. Through a number of subsidiary corporations, it provides computer software programming services around the globe. ORI's wholly-owned Indian subsidiary is MCS. Mr. Lanewala was the President and Chief Executive Officer of MCS until his resignation from the company on June 11, 1999.
Following his resignation, Mr. Lanewala contacted the Director of MCS, Mr. Padmanabhan, and requested that MCS pay him "outstanding dues," such as past salary and retirement benefits. Rather than remit payment to Mr. Lanewala, ORI filed this suit in Kansas state court on June 22, 1999. ORI asserted that, pursuant to an employment contract which Mr. Lanewala had entered into with ORI, Mr. Lanewala was prohibited from inducing ORI employees to leave their employment with ORI. ORI claimed that Mr. Lanewala had breached the protective covenant provision of the contract by soliciting numerous ORI employees to leave employment with ORI. After removing the case to federal court, Mr. Lanewala responded that he had never entered into an employment contract with ORI, and, in any event, had never solicited ORI employees. Mr. Lanewala then filed suit in the High Court of Judicature at Bombay, India, seeking an order forcing MCS to pay the dues allegedly owed to him. Mr. Lanewala also asked the Indian court to enjoin MCS from repossessing company property in Mr. Lanewala's possession (such as a company car, rental residence, and computer) until such time that MCS paid the dues allegedly owed. On November 17, 1999, the Indian court entered an order requiring the parties to simultaneously exchange the dues owed by MCS and the MCS property in the possession of Mr. Lanewala. Nonetheless, ORI filed an amended complaint in this action on January 18, 2000, adding a claim of conversion for the company property which Mr. Lanewala had previously retained.
The first motion before the court is Mr. Lanewala's motion to dismiss for lack of personal jurisdiction (Doc. 157).3 Mr. Lanewala asserts that if the court has jurisdiction, such jurisdiction would only arise from the alleged employment contract between Mr. Lanewala and ORI. Mr. Lanewala denies that such a contract exists. He argues that because ORI has presented no evidence that a genuine employment contract exists, ORI has presented no evidence that the court has personal jurisdiction. Without reaching the merits of Mr. Lanewala's argument, however, the court finds that Mr. Lanewala has previously waived the defense of lack of personal jurisdiction, requiring the court to deny the instant motion.
"A defect in the district court's jurisdiction over a party is a personal defense which may be asserted or waived by a party." Federal Deposit Ins. Corp. v. Oaklawn Apts., 959 F.2d 170, 174-75 (10th Cir.1992) (quoting Williams v. Life Sav. & Loan, 802 F.2d 1200, 1202 (10th Cir.1986)). Objections to personal jurisdiction must be asserted in the defendant's answer or in a pre-answer motion. See id. (citing Fed. R.Civ.P. 12(b)). If a party fails to assert the defense of lack of personal jurisdiction in his answer or pre-answer motion, he waives the defense. See id (citing Fed. R.Civ.P. 12(h)(1)).
Here, it is undisputed that Mr. Lanewala did not file a pre-answer motion and that he did not raise the defense of lack of personal jurisdiction in his answer (Doc. 4). The Federal Rules of Civil Procedure are sufficiently clear to put a party on unmistakable notice that the failure to raise the defense of lack of personal jurisdiction in an answer or pre-answer motion constitutes a waiver of the right to later present such a defense. Moreover, even if Mr. Lanewala had asserted his jurisdictional defense in his answer or a pre-answer motion, he would have subsequently waived the defense by seeking affirmative relief from the court in the form of counterclaims and motions for summary judgment that did not raise the defense. See Hunger United States Special Hydraulics Cylinders Corp. v. Hardie-Tynes Mfr. Co., No. 99-4042, 2000 WL 147392 (10th Cir. Feb.4, 2000) (). Accordingly, the court has no choice but to consider the defense waived and to deny Mr. Lanewala's motion to dismiss for lack of personal jurisdiction.4
ORI and Mr. Lanewala have both filed motions for summary judgment on all of ORI's claims. Mr. Lanewala has also filed four motions requesting leave to supplement his motion for summary judgment. Before addressing the parties' substantive summary judgment arguments, therefore, the court will first determine whether Mr. Lanewala's summary judgment motion will be deemed to include the material which he seeks to add.
Mr. Lanewala's first two motions to supplement (Docs. 163 & 164)5 seek to add as attachments to Mr. Lanewala's summary judgment motion his answers to ORI's interrogatories and requests for admissions. Mr. Lanewala states that he "in-advertently overlooked enclosing" these documents with his motion for summary judgment. ORI does not object to the addition of these two attachments. As noted by ORI, Mr. Lanewala filed his motions to add the attachments within the time set by the Scheduling Order for the filing of dispositive motions. Accordingly, the court grants Mr. Lanewala's first two motions to supplement his motion for summary judgment. The court will examine Mr. Lanewala's answers to ORI's interrogatories and requests for admissions when considering the merits of Mr. Lanewala's motion for summary judgment.
Mr. Lanewala's second two motions to supplement (Docs. 170 & 171)6 seek to add a forum non conveniens argument to Mr. Lanewala's motion for summary judgment. These two motions were filed after the dispositive motion deadline, making them untimely. The court also notes that Mr. Lanewala's forum non conveniens argument has already been considered and rejected by the court. In the court's November 3, 2000 Memorandum and Order, the court held that Mr. Lanewala failed to assert his motion to dismiss for forum non conveniens "within a reasonable time after the facts and circumstances which serve as a basis for the motion ... developed and [became] reasonably knowable" to Mr. Lanewala, thus making the forum non conveniens argument untimely.7 ORI, Inc. v. Lanewala, 2000 WL 1683659 at *2-3 (D.Kan. Nov.3, 2000) (citing In re Air Crash Disaster Near New Orleans, 821 F.2d 1147, 1165 (5th Cir.1987)). Accordingly, Mr. Lanewala's current motions to add a forum non conveniens argument to his motion for summary judgment are without merit, as well as untimely, and are denied. The court will not consider Mr. Lanewala's forum non conveniens argument when considering the merits of his motion for summary judgment.
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