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Firneno v. Nationwide Marketing Services, Inc.

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

April 18, 2017

JODY FIRNENO and CHRISTOPHER FRANKE, Plaintiffs,
v.
NATIONWIDE MARKETING SERVICES, INC., et al., Defendants.

          OPINION AND ORDER OVERRULING OBJECTIONS [84], ADOPTING DISCOVERY MASTER'S REPORT [83], DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT [74] WITHOUT PREJUDICE, GRANTING MOTION TO PERMIT DISCOVERY [77], AND REFERRING CASE TO MEDIATION

          STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE

         Filed on January 10, 2014, the instant case is one of the Court's oldest, and Plaintiffs' motion for class certification has been pending for almost three years. The cause of the delay is clear: Defendants have consistently frustrated the discovery process and repeatedly flouted the Court's discovery orders. Defendants' counsel recently contacted the Court, however, and suggested that the parties would benefit from mediation and settlement talks. The Court held a status call with the parties and discussed how to best resolve the case through mediation. The instant order is the result. For the reasons below, the Court will overrule Defendants' objection to the Discovery Master's recent Report, adopt the Report, resolve two of the parties' outstanding motions, and put the parties on track to resolve the case with the assistance of an expert mediation team.

         BACKGROUND

         The Court's January 10, 2017 order details the class certification and discovery issues giving rise to the Court's re-appointment of the Discovery Master. ECF 73, PgID 1722-24, 1727-33. A flurry of motions followed that order, and included: Defendants' motion for partial summary judgment as to Defendant Leon Saja under Rules 12(c) and 56(c), ECF 74; Plaintiffs' motion to permit discovery under Rule 56(d), ECF 77; and Defendants' motion to alter or amend the Court's January 10, 2017 order under Rule 59(e), or to certify that order for interlocutory appeal-presumably under 28 U.S.C. § 1292(b), ECF 78. Simultaneously, and pursuant to the Court's January 10, 2017 order, the parties timely met with the Discovery Master. ECF 83, PgID 2086.

         The Court had instructed the Discovery Master to "(1) ascertain exactly how much of discovery has been completed, (2) supervise the exchange of the remaining discovery, (3) detail the extent of Defendants' noncompliance with discovery to date, (4) recommend specific Rule 37 sanctions in light of that noncompliance, and (5) help the parties agree" to a scheduling order and briefing schedule for the updated motion to certify class. ECF 73, PgID 1731-32. The Discovery Master issued a Report in which he recommended that Defendants each supplement document production responsive to Plaintiffs' Requests for Production, and answers responsive to Plaintiffs' Interrogatories, and that any failure to do so should "result in a default and potential judgment in Plaintiffs' favor against" each Defendant. ECF 83, PgID 2110-11. Additionally, the Discovery Master recommended that Defendant Nationwide pay for and "provide a third-party vendor with access to its servers and computers to harvest data, " and that Nationwide "must provide a certification from a corporate representative of its diligent search" for documents in response to several of Plaintiffs' Requests for Production. Id. at 2011. Finally, the Discovery Master recommended that the parties receive additional time to complete discovery pursuant to a suggested briefing schedule. Id. at 2109. Defendants filed timely objections. ECF 84.

         DISCUSSION

         Defendants have lodged three objections to the Report: (1) discovery matters should be put on hold until after the Court has resolved Defendants' outstanding motion for partial summary judgment, and motion to alter or amend the Court's January 10, 2017 order, or to certify that order for interlocutory appeal; (2) the Discovery Master's recommendations as to Defendant Saja are improper; and (3) the Discovery Master's recommendations as to Defendant Nationwide are improper. ECF 84. When considering objections to the Discovery Master's Report, the Court reviews findings of fact and questions of law de novo, and rulings on procedural matters for an abuse of discretion. Fed.R.Civ.P. 53(f)(3)-(5).

         In response to Defendants' first objection, Plaintiffs contend that the Discovery Master did not abuse his discretion "in making a recommendation on discovery while Defendants' motions are pending." Id. at 2250. The Court agrees. The Discovery Master did exactly what the Court ordered, and was under no obligation to the consider any later-filed motions that fell outside the scope of the Court's directive.

         Plaintiffs further assert that the imposition of a stay of discovery is improper when factual issues remain for dispositive motions. ECF 87, PgID 2249. "Defendants should not be permitted to evade discovery, " Plaintiffs argue, "and then deprive Plaintiffs of the opportunity to use the information requested in response to dispositive motions - particularly when Defendants have already been ordered on multiple occasions to promptly produce that information." Id. at 2252. Essentially, this is the thrust of Plaintiffs' earlier motion to permit discovery under Rule 56(d), and is supported by a declaration from Plaintiffs' counsel. See ECF 77, 77-1.

         Rule 56(d) allows the Court to deny an outstanding motion for summary judgment or allow time to take discovery if the nonmovant explains, by way of affidavit or declaration, that it cannot present facts essential to justify its opposition. Fed.R.Civ.P. 56(d). While the Court has "inherent authority to control its docket in promoting economies of time and effort for the court, the parties, and the parties' counsel, " Jordan v. City of Detroit, 557 F.App'x 450, 456-57 (6th Cir. 2014) (quotations omitted), it is crucial that a "plaintiff [] receive a full opportunity to conduct discovery to be able to successfully defeat a motion for summary judgment." Ball v. Union Carbide Corp., 385 F.3d 713, 719 (6th Cir. 2004) (internal quotation marks omitted).

         Defendants object to the Discovery Master's recommendation that they produce additional discovery. Defendants claim that they have fully supplemented their discovery requests in compliance with the Court's orders. But there is no question that Defendants' obstruction has prevented Plaintiffs from receiving a full opportunity to conduct sufficient discovery to oppose a summary judgment motion. Defendants' discovery abuses have been well-documented by the Court's earlier orders, and need not be reiterated here. See ECF 50, 56, 73. Those orders, combined with the Discovery Master's recent Report, show a pattern of willful disobedience to the Court's orders.

         The Discovery Master's Report is thorough and well-reasoned, and his recommendations are fair and measured. Defendants have provided the Court with no factual or legal basis to find otherwise. Accordingly, the Court will overrule Defendants' objections, adopt the Report in full, deny without prejudice Defendants' outstanding motion for partial summary judgment, grant Plaintiffs' motion to allow discovery under Rule 56(d), and refer the case to mediation.

         ORDER

         WHEREFORE, it is hereby ORDERED that Defendants' Objection [84] is OVERRULED, the Discovery Master's Report [83] is ADOPTED in full, Plaintiffs' Motion to Permit Discovery [77] is GRANTED, and Defendants' ...


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