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Valassis Communications, Inc. v. News Corp.

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

September 25, 2017

Valassis Communications, Inc., Plaintiff,
v.
News Corporation, et al., Defendants.

         ORDER GRANTING JOINT MOTION TO ADOPT THE STIPULATED PROTECTIVE ORDER [65]; GRANTING MOTION TO TRANSFER CASE [67]; GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION [81]; DENYING MOTION TO STRIKE SUPPLEMENTAL BRIEF [93]; DENYING MOTION FOR ORDER TO REPLACE MASTER [102]

          Arthur J. Tarnow, Senior United States District Judge

         On March 6, 2017, Plaintiff filed a Motion seeking Transfer of this Case to the Southern District of New York (S.D.N.Y.) or, alternatively, re-opening the case, and reference to the assigned Magistrate Judge to permit continuance of discovery [67]. Defendants filed a response [70] on March 20, 2017, and Plaintiff replied [76] on March 23, 2017. Plaintiff filed a Motion for Temporary Restraining Order (TRO) and Preliminary Injunction [81] on March 27, 2017. Defendants responded [84] on March 28, 2017, and filed a supplemental brief [91] on March 31, 2017. On April 4, 2017, Plaintiff filed a Motion to Strike the Supplemental Brief [93], and a reply brief regarding the Motion for TRO [94]. Defendant responded to the Motion to Strike [95] on April 5, 2017. A hearing was held on all pending Motions on April 13, 2017. A Joint Motion to Adopt the Stipulated Protective Order [65] was filed on January 17, 2017, and Defendants filed a Motion for Order to Replace Master [102] on May 19, 2017.

         For the reasons stated below, Plaintiff's Motion to Transfer Venue to the S.D.N.Y. [67] is GRANTED. Plaintiff's Motion for TRO and Preliminary Injunction [81] is GRANTED. A permanent injunction is entered, enjoining Defendants from prosecuting the action before the Panel, absent the application of Rule 53 upon transfer, and Defendants' Motion for Order Appointing Replacement Master [102] is DENIED. Plaintiff's Motion to Strike Supplemental Brief [93] is DENIED and the Joint Motion to Adopt the Stipulated Protective Order [65] is GRANTED.

         Factual Background

         On March 30, 2016, the Court entered an uncontested Order in Valassis I that, in effect, referred both Valassis I and Valassis II to the Special Masters. The Special Panel subsequently recommended dismissal of Plaintiff's notice of violation in that case. Plaintiff did not file objections, deciding instead it would no longer prosecute claims of tying or bundling under the 2011 order, focusing instead on the claims in Valassis II. After the filing of the R&R, on March 6, 2017, Plaintiff brought the Motion to Transfer Venue or Re-Open case [67].

         The Special Panel has recommended a discovery schedule for the case, which Plaintiff has indicated to Defendants they will not contest. This schedule is, per Defendants' response, as follows:

The parties are currently preparing to begin depositions and fact discovery is scheduled to be completed on June 19, 2017.1 (Id. at 2.) Expert discovery will then take place between June and November 2017. (Id. at 3.) The deadline for dispositive motions is January 15, 2018, and the deadline for motions to limit or exclude expert testimony is 30 days after a decision on the dispositive motions.

[70 at 15]. Fact discovery commenced on February 10, 2017, and document discovery has been substantially completed. [Id].

         Analysis

          1. Motion for TRO [81]

         Plaintiff requests a TRO and Preliminary Injunction to prevent Defendants from utilizing the Special Masters panel prior to the resolution of the pending Motion to Transfer the Action or Re-Open the case. [81]. Plaintiff also seeks permanent injunctive relief preventing Defendants from prosecuting the case before the expert panel if the motion to transfer venue or re-open the case is granted.

         In the 2016 Order referring Valassis I and Valassis II to the Special Masters panel, the Court relied upon the 2011 order in Valassis I, which provided, per the R&R and the Order, for transfer of its claims to the expert panel. Specifically, the Court stated the following reasons for the referral of the Valassis II motion to dismiss and all pretrial motions to the expert panel: (1) to streamline the progression of the cases by conducting simultaneous discovery because of overlapping evidence; (2) to guard against the possibility that the resolution of that related case by the Court could create inconsistent rulings; and (3) to avoid duplicative discovery. There was no independent basis for the referral of the Valassis II claims. Therefore, once the expert panel disposed of the Valassis I claims, and this Court adopted that report, no rationale for transfer of Valassis II claims to the Special Masters panel remains as the basis for the March 2016 order has expired.

         As Plaintiff points out, reliance of the Court on Rule 53 to justify the continuing referral of Valassis II to the expert panel, would fail. Under Rule 53(a)(1), there are three possible reasons, outside of statute, that allow a Court to appoint a Master: (A) perform duties consented to by the parties; (B) hold trial proceedings or make recommend findings of facts on issue without a jury if there is some exceptional condition or the expert is needed to perform an accounting or resolve a difficult computation of damages; or (C) ...


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