UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

HEMLOCK SEMICONDUCTOR CORPORATION, 

 Plaintiff, Case No. 15-cv-11236 

v Honorable Thomas L. Ludington 

KYOCERA CORPORATION, 

 

 Defendant. 

__________________________________________/ 

ORDER DENYING MOTION FOR CLARIFICATION AND GRANTING IN PART AND 

DENYING IN PART MOTION FOR LEAVE TO FILE FIRST AMENDED ANSWER 

Plaintiff Hemlock Semiconductor (“Hemlock”) and Defendant Kyocera are significant 

participants in the global solar energy industry. Their immediate dispute arises from a series of 

contracts for the sale of quantities of industrial-grade polycrystalline silicon by Hemlock to 

Kyocera. Following changes in global solar market conditions, Kyocera sought to excuse its 

performance under a force majeure provision in the parties’ contracts. In response, Hemlock 

sought adequate assurances that Kyocera would perform its obligations under the agreements. 

When Hemlock concluded that Kyocera had not provided adequate assurances that it would 

perform its contractual commitment, it initiated this suit. 

 Hemlock filed its initial complaint on April 1, 2015, and filed an amended complaint on 

April 29, 2015. Kyocera filed its answer together with six counterclaims on July 10, 2015. ECF 

Nos. 4, 9. On January 6, 2016 the Court granted Hemlock’s motions to dismiss Kyocera’s 

counterclaims and strike Kyocera’s Japanese antitrust defense. ECF No. 61. Kyocera now 

brings a motion for leave to file a first amended answer and counterclaims, and a motion for 

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clarification of the Court’s January 6, 2016 order. Kyocera’s motion for clarification will be 

denied, and Kyocera’s motion for leave to amend will be granted in part and denied in part. 

I. 

The facts as set forth in the Court’s January 6, 2016 order are, in relevant part, as follows. 

Hemlock, Plaintiff in this action, is a Michigan corporation involved in the manufacture and sale 

of polycrystalline silicon (“polysilicon”) and photovoltaic solar cells and modules. ECF No. 4 at 

¶¶ 1, 3, 7. The majority of the common stock of Hemlock is owned by Dow Corning 

Corporation. Shin-Etsu Handotai Co. Ltd. owns a minority interest in Hemlock. See Joint 

Venture Partners, HSCPOLY, http://www.hscpoly.com/content/hsc_comp/ownership.aspx. 

Kyocera, Defendant in this action, is a Japanese corporation that describes itself as “one of the 

world’s largest vertically-integrated producers and suppliers of solar energy panels.” ECF No. 4 

at ¶ 8. 

A.

Beginning in 2005, in the face of a worldwide polysilicon shortage, Hemlock and 

Kyocera entered into four long-term polysilicon supply contracts. The first Long Term Supply 

Agreement (“Agreement I”) is effective from August 30, 2005 to December 31, 2015. The 

second Long Term Supply Agreement (“Agreement II”) is effective from July 21, 2006 to 

December 31, 2018. The third Long Term Supply Agreement (“Agreement III”) is effective from 

July 18, 2007 to December 31, 2019. Finally, the fourth Long Term Supply Agreement 

(“Agreement IV”) is effective from November 13, 2008 to December 31, 2020. Am. Compl. at 

¶¶ 12-13. The agreements require Kyocera to make large initial payments to assist Hemlock’s 

expansion of its existing polysilicon production facilities in the United States. 

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After the parties entered into the agreements, the global solar industry was affected by the 

Chinese government’s intervention. Specifically, the Chinese government provided subsidies to 

Chinese solar-based companies and facilitated large-scale “dumping” of Chinese solar panels 

into the global market in order to increase Chinese market share in the solar industry. In 

response, in 2012 the United States government imposed anti-subsidy and anti-dumping import 

tariffs of 24-36 percent on Chinese solar components. These state actions caused the prices of 

both polysilicon and solar panels to drop precipitously. 

In response to the falling market prices, the parties agreed to short-term contract 

modifications in 2011 and 2012 that lowered the gross price and the advance payment for those 

years. These modifications did not affect any other contract terms or future pricing schedules. 

While the short-term price amendments came to an end, the Chinese market saturation and 

resulting trade war did not. From mid-2014 to early 2015, Kyocera proposed additional price 

modifications, all of which Hemlock rejected. 

B.

After failing to reach a modification agreement, Kyocera sent notice to Hemlock in 

February 2015 that it was exercising a force majeure provision of Agreement IV. Hemlock 

refused to recognize Kyocera’s invocation of any force majeure rights, contending that the force 

majeure provision in Agreement IV did not excuse Kyocera from performance because of the 

changing solar-market conditions. Consequently, on February 13, 2015 Kyocera filed suit in 

Michigan state Court seeking a declaration that its contractual performance could be excused by 

Agreement IV’s force majeure clause. 

On June 16, 2015, the Michigan State trial court granted Hemlock’s motion for summary 

disposition, finding that the change in market conditions did not implicate Agreement IV’s force 

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majeure clause. On December 3, 2015, the Michigan Court of Appeals affirmed, explaining that 

Kyocera had assumed the market risks that gave rise to the alleged liability and that “the plain 

language of the force majeure clause at issue does not permit relief to plaintiff on the grounds 

that the market for polysilicon has shifted, regardless of the cause of that shift.” Kyocera Corp. 

v. Hemlock Semiconductor, 15-025786-CK *2 (Mich. Ct. App. Dec. 3, 2015), ECF No. 58 Ex. A. 

C.

 On February 26, 2015 Hemlock sent Kyocera a demand for adequate assurances that it 

would perform under Agreements I-III pursuant to MCLA § 440.2609. Compl. ¶ 28. Kyocera 

sent Hemlock a response on March 26, 2015, arguing that Kyocera had no obligation to provide 

written assurances to Hemlock and that MCLA § 440.2609 did not apply to the supply 

agreements. Id. at ¶ 29. Hemlock then initiated the instant suit on April 1, 2015 alleging that 

Kyocera had failed to provide Hemlock with adequate assurances that it would make purchases 

under the supply agreements in 2015. Am. Compl. ¶ 28. 

Two days later, on April 3, 2015, Kyocera filed a complaint against Hemlock in the Civil 

Division of Tokyo District Court in Japan. The Tokyo complaint alleges that Hemlock violated 

Japanese antitrust law by abusing a superior position of bargaining power in entering into the 

supply agreements. That case remains pending. 

Then, on October 7, 2015 Hemlock filed suit in Saginaw County circuit court alleging 

that Kyocera had violated supply agreement IV, seeking a declaratory judgment that supply 

agreement IV is not unconscionable, and seeking an anti-suit injunction to prevent Kyocera from 

further prosecuting the Tokyo Action. Kyocera removed that action to this Court on February 3, 

2016, and that action also remains pending at this time. See Case No. 1:16-cv-10376, ECF No. 1. 

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After Kyocera filed its answer, together with six counterclaims, Hemlock moved to 

dismiss Defendant Kyocera’s counterclaims. ECF Nos. 9, 21. Hemlock also moved to strike an 

affirmative defense alleged by Kyocera based on Japanese antitrust law. ECF NO. 22. On 

January 6, 2016, the Court granted both of Hemlock’s motions, dismissed Kyocera’s seven 

counterclaims, and struck Kyocera’s Japanese antitrust defense. ECF NO. 61. Kyocera now 

brings a motion for clarification of that order and a motion for leave to file a first amended 

answer and counterclaims. ECF Nos. 64, 62. 

II. 

Kyocera’s motion for clarification will be addressed first. In the Court’s January 6, 2016 

order, the Court determined that Kyocera’s antitrust defense should be stricken for two reasons: 

[F]irst, because it does not meet the requirements of Kaiser Steele and Kosuga to 

be proper for this Court’s determination as part of this breach of contract action, 

and second, because even if Kyocera obtained a final judgment from the Tokyo 

District court, the Supply Agreements’ forum selection provision and choice of 

law provision would preclude this Court from recognizing the foreign judgment. 

ECF No. 61. Kyocera now moves for clarification as to the second reason. Specifically, 

“Kyocera asks the Court to confirm that it did not intend to prejudice Kyocera’s ability to ask the 

Court to consider a request to enforce a valid Japanese Judgment (and Kyocera’s ability to fully 

address the related issues of comity and choice of law) if such a judgment issues.” ECF No. 64, 

1. Hemlock opposes Kyocera’s motion for clarification, arguing that Kyocera’s motion has 

identified no language that actually needs to be clarified, and that Kyocera merely disagrees with 

the Court’s opinion and analysis. ECF No. 66. 

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 Kyocera’s motion will be denied. Kyocera has not identified any unclear language or 

analysis in the Court’s previous opinion.1

 It is not appropriate for this Court to interpret or 

expound upon its previous opinion unmoored from an actual (as opposed to a hypothetical) 

dispute. 

III.

Kyocera also moves for leave to file a first amended answer and counterclaims. ECF No. 

62. Under Federal Rule of Civil Procedure 15, a court should “freely give leave” to amend 

“when justice so requires.” FED. R. CIV. P. 15(a)(2). “[T]he thrust of Rule 15 is to reinforce the 

principle that cases should be tried on their merits rather than the technicalities of pleadings.” 

Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986) (internal citations and quotations 

omitted). Factors that courts should consider when determining whether to grant leave to amend 

include “[u]ndue delay in filing, lack of notice to the opposing party, bad faith by the moving 

party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the 

opposing party, and futility of amendment....” Hageman v. Signal L.P. Gas, Inc., 486 F.2d 479, 

484 (6th Cir. 1973). “Decisions as to when justice requires amendment are left to the sound 

discretion of the trial judge[.]” Robinson v. Michigan Consol. Gas Co. Inc., 918 F.2d 579, 591 

(6th Cir. 1990). 

Plaintiff Hemlock argues that Kyocera’s proposed amendments would be futile. “A 

proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to 

dismiss.” Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010) 

(internal citation and quotation marks omitted). A pleading fails to state a claim under Rule 

 

1

 Kyocera’s request for leave to file a motion for reconsideration will not be considered. As explained in the Court’s 

practice guidelines, “under no circumstances may a motion be included within the text or footnotes of another 

motion.” 

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12(b)(6) if it does not contain allegations that support recovery under any recognizable legal 

theory. Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009). 

In considering a Rule 12(b)(6) motion, the Court construes the pleading in the nonmovant’s favor and accepts the allegations of facts therein as true. See Lambert, 517 F.3d at 439. 

The pleader need not have provided “detailed factual allegations” to survive dismissal, but the 

“obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Court is not “bound to accept as true 

a legal conclusion couched as a factual allegation.” Ashcroft, 556 U.S. at 678. In essence, the 

pleading “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 

plausible on its face.’” Iqbal, 556 U.S. at 678, (quoting Twombly, 550 U.S. at 570). 

A. 

Kyocera first seeks to add additional facts in support of a renewed counterclaim for 

declaratory judgment of impracticability. As thoroughly explained in this court’s previous order: 

The alleged illegal acts of the Chinese government have no bearing on whether 

Kyocera’s performance has become impossible or impracticable. Rather, the 

alleged illegal acts have simply caused a market shift in pricing, making it 

unprofitable for Kyocera to continue to perform as promised. Regardless of the 

cause of the market shift, Kyocera’s allegations amount only to claims of 

“economic unprofitableness,” which are insufficient to give rise to claims of 

impossibility or impracticability. See Chase, 217 N.W. at 567. 

ECF No. 62, 8. In contrast to Kyocera’s assertion, this Court’s previous order in response to 

Hemlock’s motion to dismiss was not intended to act as a drafting guide for Kyocera. Instead, 

upon Hemlock’s challenge to the validity of Kyocera’s counterclaims, this Court’s order was 

intended to narrow the scope of this action to legally relevant facts and claims. Kyocera’s claim 

that its “solar business would cease to exist if it is forced to attempt to perform under the 

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Agreements” does not change the analysis. As explained by the Sixth Circuit in Karl Wendt, 

“neither market shifts nor the financial inability of one of the parties changes the basic 

assumptions of the contract such that it may be excused under the doctrine of impracticability.” 

Karl Wendt Farm Equipment Co., Inc. v. International Harvester Co., 931 F.2d 1112, 1117-18 

(6th Cir. 1991). Regardless of the nature or magnitude of the Chinese Government actions, 

Kyocera’s claims amount only to a claim that continued performance is unprofitable. Kyocera’s 

proposed amended impracticability counterclaim would be futile. 

B.

 Kyocera also seeks to renew its counterclaim for a declaratory judgment of frustration of 

purpose. In its proposed claim, Kyocera seeks to define the primary purpose of the Agreements 

as providing a stable supply of usable polysilicon at a fixed price, in the context of a legally 

functioning market. 

 This Court has already found to the contrary: 

The unambiguous primary purpose of the agreements was for Hemlock to provide 

Kyocera with a stable supply of polysilicon at a predictable price. This is apparent 

by the preambles of the agreements, which provide, “...Buyer desires to purchase 

and [Hemlock] agrees to sell Products (herein defined) pursuant to the terms and 

conditions of this Agreement.” See ECF No. 1, Exhibit 1 at 1, Exhibit 2 at 1, 

Exhibit 3 at 1. It is also apparent by the parties’ choice to structure their 

relationship in the form of long-term requirement contracts in order to provide 

some stability in fluctuating markets. 

ECF No. 66, 8-9. This Court is not “bound to accept as true a legal conclusion couched as a 

factual allegation.” Ashcroft, 556 U.S. at 678. For these reasons, Kyocera’s proposed 

amendment is futile. 

C. 

 Next, Kyocera seeks to renew its counterclaim for breach of contract against Hemlock. 

In its proposed amendment, Kyocera seeks to add allegations that Hemlock agreed to open and 

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operate expanded facilities, which it failed to do. This argument was already dismissed by this 

Court, and is futile. 

In Michigan, if “contract language is clear and unambiguous, its meaning is a question of 

law.” Port Huron Educ. Ass'n v. Port Huron Area Sch. Dist., 550 N.W.2d 228, 237 (Mich. 

1996). With regard to the expanded manufacturing facility, Supply Agreements ¶ 9 provides: 

“Buyer acknowledges that [Hemlock] will be expanding its manufacturing facilities... in order to 

produce the Products to be supplied under this Agreement.” Agreements I-III ¶ 9. That 

paragraph further provides: “Buyer acknowledges the possibility of delays in completing the 

manufacturing facility and expressly agrees that, so long as production of Product commences by 

[June 30, 2008/June 30, 2009/June 30, 2010], [Hemlock] SHALL HAVE NO LIABILITY TO 

BUYER FOR ANY SUCH DELAY.” Id. (emphasis in originals). 

This Court has already dismissed Kyocera’s claim that Hemlock breached its agreement 

to maintain expanded manufacturing facilities. As explained in this Court’s previous order: 

[T]here is nothing in the Supply Agreements that supports Kyocera’s allegation 

that Hemlock agreed to maintain expanded manufacturing facilities. At most, the 

provision could amount to a promise by Hemlock to expand its manufacturing 

facilities to meet Kyocera’s product demands under the Supply Agreements. 

Accordingly, Kyocera’s claim will be dismissed to the extent that it suggests that 

Hemlock breached the Supply Agreements by failing to maintain expanded 

facilities. 

ECF No. 61. For this same reason, Kyocera’s motion for leave to file an amended counterclaim 

alleging breach of contract will be denied. 

Furthermore, Kyocera’s has not alleged legally sufficient damages to support this claim, 

even if it were valid (which it is not). It is undisputed that Kyocera is the party that decided to 

cease performance under the Supply Agreements. There is no allegation whatsoever that 

Hemlock was unable to meet Kyocera’s demand for Polysilicon. Despite this, Kyocera attempts 

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to asserts three theories of damages resulting from Hemlock’s failure to open and operate 

expanded facilities: (1) loss of the value of hundreds of millions of dollars in advance payments; 

(2) losses from the further damage of the polysilicon market by the illegal Chinese government 

conduct; and (3) injury from Hemlock’s refusal to negotiate price. See ECF No. 71, 5. 

 Kyocera’s allegation that it was damaged by its loss of advance payments was already 

dismissed in the Court’s previous order based on the clear, unambiguous language of the Supply 

Agreements: 

Kyocera argues that because it agreed to the advanced payments for the purpose 

of allowing Hemlock to expand its manufacturing facilities, it has been injured as 

a result of Hemlock’s failure to sufficiently expand its facilities. However, by the 

very terms of the advanced payment provision, Kyocera agreed “to make a nonrefundable, unconditional, irrevocable advance payment” and expressly 

acknowledged its understanding and agreed that, “once this Agreement is 

executed, there are no circumstances or occurrences that will require [Hemolock] 

to refund to [Kyocera] all or any portion of the Advance Payment.” Agreements IIII ¶ 2. Nothing in the Supply Agreements suggests that the advanced payments 

were in consideration for the expanded facilities. Instead, all three contracts are 

clear that the advanced payments were “non-refundable, unconditional, [and] 

irrevocable.” Id. at ¶ 9. The Supply Agreements further explain that the only 

circumstance or occurrence requiring Hemlock to refund a portion of the advance 

payment is if, as a result of Hemlock’s delay in completing its expanded 

manufacturing facility, Kyocera suffered loss, damage or injury resulting from (1) 

Hemlock’s delay in delivery or (2) Hemlock’s “failure to perform which is due to 

circumstances beyond its control.” Id. at ¶ 15. ... At the time of the agreements, 

Kyocera agreed to the non-refundable, unconditional, and irrevocable advanced 

payments. It cannot now, with the benefit of hindsight, recast the nature of those 

advanced payments. 

Furthermore, Kyocera’s advanced payments to Hemlock are to be “applied as a 

credit against the price of the Products that Buyer is required to purchase under 

this Agreement at the times and amounts shown [in the schedules].” Accordingly, 

any damages that Kyocera suffers relating to the advanced payment is a result of 

its decision to cease performance under the agreed upon terms of the Supply 

Agreements. If Kyocera continued to perform as promised, then the advance 

payments would continue to be credited against Kyocera’s subsequent purchases. 

ECF No. 21, 25-26. Because the Supply Agreements unambiguously state that the advance 

payments were “non-refundable, unconditional, irrevocable”, and because the decision to cease 

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performance under the Supply Agreements was Kyocera’s, Kyocera cannot allege that its failure 

to recoup those payments is a damage resulting from Hemlock’s failure to “operate expanded 

facilities.” See Port Huron Educ. Ass'n, 550 N.W.2d at 237. 

 Kyocera next alleges that it was damaged by Hemlock’s failure to maintain expanded 

facilities in the following way: 

Had Hemlock expanded its facilities as promised, the Chinese Government would 

not have been able to gain as much control as it now has over the market through 

its illegal conduct because there would have been on additional private actor, with 

significant production capacity, affecting the market through legal conduct. 

ECF No. 62, 18. 

 Under Michigan law, a party asserting breach of contract “may recover only those 

damages that are the direct, natural, and proximate result of the breach.” Alan Custom Homes, 

Inc. v. Krol, 667 N.W.2d 379, 383 (Mich.Ct. App. 2003) (internal quotations and citation 

omitted). Thus, in contrast, the damages “must not be conjectural or speculative in their nature, 

or dependent upon the chances of business or other contingencies....” McEwen v. McKinnon, 11 

N.W. 828 (Mich. 1882). See also Doe v. Henry Ford Health Sys., 865 N.W.2d 915, 922 (Mich. 

Ct. App. 2014) appeal denied, 498 Mich. 879, 868 N.W.2d 912 (2015). 

Kyocera’s alleged damages are conjectural and speculative, and entirely dependent on 

other business contingencies. The allegations amount to post-hoc assumptions about the way that 

a third party actor, the Chinese Government, may have acted in response to Hemlock’s operation 

of expanded facilities, and ignores countless business contingencies that could have otherwise 

affected Hemlock’s supply or output (such as reluctant purchasers). The alleged damages are 

therefore not “the direct, natural, and proximate result of the breach.” Alan Custom Homes, 667 

N.W.2d at 383. The damage allegation is therefore futile. 

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Kyocera’s third and final damage theory fails for a similar reason. Kyocera alleges that, 

“[h]ad Hemlock opened and operated expanded facilities, by necessity it would have needed to 

sell the new supply of polysilicon and would have needed to compromise with its customers.” 

This argument is rife with speculation. Not only does it assume that Hemlock would have needed 

to sell the hypothetical new supply, it also assumes that Hemlock would have been required to 

negotiate prices. More fatally, it assumes that Hemlock would have had to negotiate prices with 

Kyocera as opposed to with its multiple other customers. Because this damage theory is entirely 

conjectural and speculative, it is futile. 

D.

 Finally, Kyocera seeks leave to amend its answer in order to add events that happened 

after the date of the original pleading. Under Federal Rule of Civil Procedure 15(d), “[o]n 

motion and reasonable notice, the court may, on just terms, permit a party to serve a 

supplemental pleading setting out any transaction, occurrence, or event that happened after the 

date of the pleading to be supplemented.” Kyocera seeks to add an allegation that Hemlock sold 

the Clarksville site to Google. It also seeks to add an allegation that Hemlock issued shortfall 

notice to Kyocera demanding payment for polysilicon not ordered by Kyocera in 2015. Kyocera 

claims that these factual allegations “are relevant to Kyocera’s affirmative defenses that remain 

at issue following the Order, in addition to Kyocera’s amended counterclaims.” Because these 

factual allegations may be relevant to outstanding claims or defenses in this matter, Kyocera will 

be granted leave to amend its pleading pursuant to Rule 15(d). 

IV. 

 Accordingly, it is ORDERED that Kyocera’s motion for clarification, ECF No. 64, is 

DENIED. 

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 It is further ORDERED that Kyocera’s motion for leave to file a first amended answer 

and counterclaims, ECF No. 62, is GRANTED IN PART AND DENIED IN PART. 

 It is further ORDERED that Kyocera is GRANTED LEAVE to amend its answer to add 

the proposed factual allegations concerning events that happened after the date of Kyocera’s 

original answer pursuant to Rule 16(d). 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: March 1, 2016 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on March 1, 2016. 

 s/Michael A. Sian 

 MICHAEL A. SIAN, Case Manager 

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