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Fisher & Company, Inc. v. Fine Blanking & Tool Co. L.T.D.

United States District Court, E.D. Michigan, Southern Division

November 8, 2019

FISHER & COMPANY, INC., Plaintiff,
FINE BLANKING & TOOL CO., L.T.D., Defendants.



         Plaintiff Fisher & Company, Inc. (“Fisher”) moves for the court to issue an injunction against Defendant Fine Blanking & Tool Co., L.T.D. (“FBT”). (ECF No. 17.) Fisher seeks to prevent FBT from litigating claims against Fisher in Taiwan. FBT has responded and Fisher has replied. (ECF Nos. 23, 24.) For the reasons provided below, the motion will be denied.

         I. BACKGROUND

         Fisher filed this suit on March 6, 2019. (ECF No. 1.) It alleged that it contracted with FBT, an auto parts supplier, to produce and deliver specified latches for Fisher. (Id., PageID.2, ¶¶ 10-11.) Fisher incorporated these latches into seating structures for automobiles, ultimately sold by companies such as Fiat Chrysler. (Id., PageID.2, ¶¶ 7, 10.) Fisher claimed that FBT breached contractual obligations, memorialized in a purchase order. (Id., PageID.5-6, ¶¶ 35-38.) The purchase order is labeled SCS000097. (Id.)

         Fisher claims that FBT delivered defective parts. (Id., PageID.4, ¶¶ 21-22.) In order to meet requirements with its customers, Fisher alleged that it needed to terminate the contract with FBT and produce the latches internally. (Id., PageID.4-5, ¶ 28.) In its complaint, Fisher brought one count for breach of contract against FBT and another count for declaratory judgment, asking the court to determine the amount Fisher owes to FBT for Fisher's early termination. (Id., PageID.5-6, ¶¶ 34-44.)

         On May 18, 2019, FBT notified Fisher that it had filed two complaints against Fisher in Taiwanese courts four days earlier, on May 14, 2019. (ECF No. 17, PageID.220-21.) One suit was brought before Taiwan's Intellectual Property Court while another was brought before a Taiwanese district court. (Id., PageID.234, 241.) The intellectual property suit alleged that Fisher and a Taiwanese subsidiary owned by Fisher, Fisher Dynamics (Shanghai), conspired to fraudulently steal trade secrets, utilized copyrighted material unlawfully, and engaged in unfair competition against FBT, amongst other claims. (Id., PageID.231-34.) The district court suit included allegations that Fisher and its subsidiary had unlawfully damaged FBT's business reputation, had obtained an undue benefit, and had committed “contracting negligence” in undermining FBT's expectations of a continuing commercial relationship. (Id., PageID.238-41.)


         Fisher asks the court to issue an injunction against FBT and cut short ongoing litigation in Taiwan. Fisher relies on a forum selection clause purportedly included in purchase order SCS000097. (ECF No. 17, PageID.213.) The court does not find the exceptional remedy of an anti-suit injunction appropriate or necessary.

         “An injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010). In fact, it “has been characterized as ‘one of the most drastic tools in the arsenal of judicial remedies.'” Bonnell v. Lorenzo, 241 F.3d 800, 808 (6th Cir. 2001) (quoting Hanson Trust PLC v. ML SCM Acquisition Inc., 781 F.2d 264, 273 (2d Cir. 1986)).

         The presumption against injunctions is especially applicable when an injunction would affect a foreign government. The Sixth Circuit has recently held that an anti-suit injunction is permissible to uphold a forum selection clause. Beijing Fito Med. Co. v. Wright Med. Tech., Inc., 763 Fed. App'x 388, 400 (6th Cir. 2019). However, the Sixth Circuit has also clarified that an order forbidding a party from litigating in a foreign court “should be issued sparingly and only in the rarest of cases.” Gua Shan Co. v. Bankers Trust Co., 956 F.2d 1349, 1354 (6th Cir. 1992); Answers in Genesis of Kentucky, Inc. v. Creation Ministries Int'l, Ltd., 556 F.3d 459, 471 (6th Cir. 2009). This is because such a decision involves a court in one judicial district of the United States dictating to a foreign sovereign government that it cannot hear a lawsuit under its own laws. The Sixth Circuit has described how “[s]uch action conveys the message, intended or not, that the issuing court has so little confidence in the foreign court's ability to adjudicate a given dispute fairly and efficiently that it is unwilling even to allow the possibility.” Id. at 1355. “Foreign governments can be expected to reciprocate such disrespect, ” damaging international comity for our nation as a whole. Id. An anti-suit injunction “threatens predictability [throughout international commerce] by making cooperation and reciprocity between courts of different nations less likely.” Id. More specifically, it risks a reciprocal anti-suit injunction by the Taiwanese courts against this court, resulting in “both actions . . . paralyzed and neither party . . . able to obtain any relief.” Id. at 1354-55.

         Hesitation to issue such injunctions fits within the greater theme in American jurisprudence that disfavors unnecessary judicial interference with foreign affairs, an area generally reserved to other branches of the federal government. Although discussed in different legal contexts, it is “long acknowledged that courts are particularly ill suited to intervening in exigent disputes . . . [that] creat[e] acute ‘risk of embarrassment of our government abroad.'” Zivotofsky v. Clinton, 566 U.S. 189, 205-06 (2012) (quoting Baker v. Carr, 369 U.S. 186, 226 (1962)). “Foreign policy and national security decisions are ‘delicate, complex, and involve large elements of prophecy' for which ‘the Judiciary has neither aptitude, facilities, nor responsibility.'” Jesner v. Arab Bank, PLC, 138 S.Ct. 1386, 1414 (2018) (Gorsuch, J., concurring) (quoting Chicago & S. Air Lines, Inc. v. Waterman SS Corp., 333 U.S. 103, 111 (1948)).

         Even though this court may issue an injunction impacting foreign governments, it does not mean that the court should risk the potential consequences. Beijing, 763 Fed. App'x 388, the case Fisher relies on to argue for an injunction, was ground breaking in that Beijing allowed a federal court to enforce a forum selection clause by means of a foreign anti-suit injunction in the first place. The holding in Beijing does not dispel the long-standing principles disfavoring such actions. See Beijing, 763 Fed. App'x at 399 (quotations removed) (“Courts rarely issue the injunction because that relief contravenes the general principle of allowing parallel proceedings on the same in personam claim.”).

         The parties put forward substantial dispute over whether a forum selection clause applies to purchase order SCS000097. (ECF No. 23, PageID.302-03; ECF No. 24, PageID.490-91.) Putting that question aside, the court is more uncertain as to whether, if the clause did apply, it covers claims put forward in Taiwan. The clause only applies to “any action hereunder.” (ECF No. 17, PageID.253.) Fisher argues that the Taiwanese intellectual property suit is covered by SCS000097 because “[SCS000097] addresses intellectual property.” (ECF No. 24, PageID.491.) Fisher claims that the Taiwanese district court suit is covered because “when a contract covers the duties that are subject of an asserted claim, no tort claim can lie.” (Id.)

         It is nonetheless striking that both of FBT's Taiwan suits make no reference to SCS000097 or any of its terms. (ECF No. 17, PageID.222-42.) No. other purchase order is mentioned. (Id.) None of the grounds listed in the intellectual property claim contain any reference to a contract or contracting. (Id., PageID.222-35.) The Taiwanese district court suit only mentions a contract (unspecified) when discussing its claim for “contracting ...

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