UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

HEMLOCK SEMICONDUCTOR 

CORPORATION, et al., 

 Plaintiffs, Case No. 15-cv-11236 

v Honorable Thomas L. Ludington 

KYOCERA CORPORATION, 

 

 Defendant. 

__________________________________________/ 

ORDER PROVISIONALLY GRANTING DEFENDANT’S MOTION TO SEAL, 

GRANTING DEFENDANT LEAVE TO FILE DOCUMENTS UNDER SEAL, 

GRANTING PLAINTIFF’S MOTION TO STRIKE, AND STRIKING REASSERTED 

COUNTERCLAIMS 

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 an amended complaint on April 

29, 2015, asserting that Kyocera had failed to provide adequate assurances of performances 

under MCLA § 440.2609 and had repudiated Supply Agreements I-III. ECF No. 4. Hemlock 

also seeks a declaratory judgment that Supply Agreements I-III are not unconscionable and an 

anti-suit injunction to prevent Kyocera from further prosecuting a related action in Tokyo. Id. 

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Kyocera filed its answer together with six counterclaims on July 10, 2015. ECF No. 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. On March 11, 2016, this matter was 

consolidated with a related action between Hemlock Semiconductor LLC (“Hemlock LLC”) and 

Kyocera regarding the enforceability of Supply Agreement IV. ECF No. 83. 

Following consolidation, on March 18, 2016 Hemlock filed an amended, consolidated 

complaint. See ECF No. 85. On April 8, 2016 Defendant Kyocera filed its answer. See ECF No. 

89. Kyocera also filed six counterclaims with the answer, four of which reassert claims that were 

previously dismissed. Id. Kyocera also filed a motion to seal certain documents in support of its 

answer and amended complaint. See ECF No. 90. Hemlock now moves to strike the reasserted 

defenses pursuant to Fed. R. Civ. P. 12(f). 

I. 

Kyocera’s motion to seal will be addressed first. See ECF No. 90. Pursuant to Local Rule 

5.3(b)(A), a motion to authorize sealing must: 

(i) state the authority for sealing; 

(ii) include an identification and description of each item proposed for sealing; 

(iii) state the reason that sealing each item is necessary; 

(iv) state the reason that a means other than sealing is not available or 

unsatisfactory to preserve the interest advanced by the movant in support 

of the seal; and 

(v) have a supporting brief. 

E.D. MICH. LR 5.3(b)(A). Defendant Kyocera’s motion complies with these requirements, as it 

adequately identifies and describes the documents it would like sealed and the reasons why 

sealing each item is necessary. However, because this is Court of public record, Kyocera’s 

motion to seal will be granted only on the condition that the documents do not become 

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necessary to an adjudicatory process. If the sealed items become relevant to an adjudicatory 

process (e.g., argument on the record in open court, publishing of a written opinion, etc.) this 

order will need to be revisited and the documents may be unsealed. Until that time, Kyocera’s 

motion to seal will be granted, and Kyocera will be granted leave to file Exhibits 1B-1G, 2B2G, 3B-3G, 4B-4G, 13, and 14 to its amended answer under seal. 

II.

 Under Federal Rule of Civil Procedure 12(f) “[t]he Court may strike from a pleading an 

insufficient defense or any redundant, immaterial, impertinent or scandalous matter.” Hemlock 

now moves to strike Kyocera’s reasserted counterclaims, pled in Kyocera’s amended answer as 

Counterclaims 3-6. See ECF No. 100. In its response to Hemlock’s motion, Kyocera 

acknowledges that the Court previously dismissed the reasserted claims on the merits, and 

explains that it has restated the claims to preserve its ability to appeal the dismissal of those 

claims. See ECF No. 103. 

 Under Sixth Circuit law, Kyocera does not need to replead the dismissed claims to 

preserve them for appeal, as the order dismissing the counterclaims preserves them for appeal. 

See Hayward v. Cleveland Clinic Found., 759 F.3d 601, 618 (6th Cir. 2014). The counterclaims 

are therefore redundant, and will be stricken. 

III. 

Accordingly, it is ORDERED that Defendant Kyocera’s motion to file exhibits under 

seal, ECF No. 90, is provisionally GRANTED. 

It is further ORDERED that Kyocera is GRANTED LEAVE Exhibits 1B-1G, 2B2G, 3B-3G, 4B-4G, 13, and 14 to amended answer under seal. 

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It is further ORDERED that Hemlock’s motion to strike, ECF No. 100, is 

GRANTED. 

It is further ORDERED that Counterclaims 3, 4, 5, and 6 as asserted in Kyocera’s 

amended answer, ECF No. 89, are STRICKEN. 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: June 14, 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 June 14, 2016. 

 s/Michael A. Sian 

 MICHAEL A. SIAN 

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