United States District Court, E.D. Michigan, Southern Division
DAVID BAHORSKI, and CHRISTOPHER L. GARNER, Plaintiffs,
CITY OF EASTPOINTE, MARY VAN HAAREN, JOHN DOE BUILDING OFFICIALS, and JANE DOE BUILDING OFFICIALS, Defendants.
District Judge Marianne O. Battani
OPINION AND ORDER REGARDING DEFENDANTS' MOTION TO
COMPEL , PLAINTIFFS' MOTION TO COMPEL , AND
MOTIONS TO QUASH OF GARNER PROPERTIES  AND SUMMIT
K. MAJZOUB UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Defendants' Motion to
Compel (docket no. 26) and Plaintiff's Motion to Compel
(docket no. 34). The parties filed Joint Statements of
Resolved and Unresolved Issues regarding both motions.
(Docket nos. 39, 43.) In addition, non-parties Garner
Properties & Management, LLC and Summit Consulting
Services, LLC each filed a Motion to Quash a subpoena served
on them by Defendants. (Docket nos. 15, 16.)
four motions were referred to the undersigned pursuant to 28
U.S.C. § 636(b)(1)(A). (Docket nos. 18, 27, 35.) The
Court has reviewed the pleadings and dispenses with oral
argument pursuant to Eastern District of Michigan Local Rule
David Bahorski and Christopher L. Garner provide services to
owners of residential property located in the City of
Eastpointe, Michigan. The Parties dispute the precise nature
of the services provided, as well as Plaintiffs'
connections to intermediary entities Garner Properties &
Management, LLC (“GPM”) and Summit Consulting
Services, LLC (“SCS”).
contend that Defendants wrongfully charged them with
violations of Section 10-46 of the Eastpointe Code of
Ordinances, which provides as follows.
No person shall hereafter allow to be occupied, or rented or
let to another person for occupancy, any dwelling unit,
rooming unit, single-family dwelling, two-family dwelling,
multifamily dwelling, boardinghouse, roominghouse,
lodginghouse, tourist house or hotel, which premises are
intended for occupancy as a residential rental property
within the city, for which a registration statement has not
been properly made and filed with the building department of
the city and for which a license has not been issued by the
building department of the city.
allege that Defendants filed such charges in violation of the
Fourteenth Amendment, Fourth Amendment, and First Amendment
to the U.S. Constitution, and that such charges amount to
malicious prosecution, abuse of process, unjust enrichment,
and defamation under Michigan law. Plaintiffs seek injunctive
relief and money damages. In addition, Plaintiffs purport to
represent a class of similarly situated individuals who (1)
“do not own real property in the City of Eastpointe who
have been charged criminally instead of the owners of real
property who have allegedly violated the City's codes and
ordinances” and who (2) “do not own real property
in the City of Eastpointe who suffered malicious prosecution
or abuses of process at the hands of the City of Eastpointe
whose criminal charges related to building code enforcement
were dismissed by nolle prosequi.”
sought a preliminary injunction in order to preclude
Defendants from issuing criminal violations to non-owners of
rental properties. (Docket no. 11.) In support, Plaintiffs
contended that they do not own or personally manage any
properties subject to the rental-housing ordinances, and that
“it is unconstitutional to attempt to hold an employee
or agent responsible for the acts of a corporate
entity.” Plaintiffs accuse Defendants of implementing a
policy of “vicarious criminal liability” by
charging Plaintiffs in a personal capacity for violations by
owners and/or corporate property managers. In addition,
Plaintiffs assert that, even assuming that the ordinances
apply to them in an individual capacity, Defendants lacked
probable cause to believe that Plaintiffs violated the
opposed Plaintiffs' motion, and contended that Plaintiffs
signed housing registration applications in an individual
capacity and thereby agreed to be held liable for violations
of the subject ordinances on behalf of the property owners.
In addition, Defendants questioned whether GPM and SCS were
legitimately independent from Plaintiffs.
1, 2017, the Court held a hearing regarding Plaintiffs'
motion, and preliminarily enjoined Defendants from
prosecution of criminal charges under the City of
Eastpointe's Residential Rental Housing Ordinance against
Plaintiffs in their individual capacities for violations
arising from properties for which Plaintiffs are not
individually identified as “owner” and/or
“agent.” In so holding, the Court preliminarily
held that if Plaintiffs were “mere employees or
contractors of the corporate applicant[s], then they cannot
be individually charged.” (Docket 29, p. 42.)
9, 2017, Defendants filed a motion to compel Plaintiffs to
respond to Defendants' first interrogatories and document
requests. (Docket no. 26.) On June 30, 2017 Plaintiffs filed
a motion to compel Defendants to respond to Plaintiffs'
initial requests. (Docket no. 34.) The Parties dispute the
relevance and proportionality of each other's discovery
requests. In addition, non-parties GPM and SCS filed motions
to quash subpoenas served on them by Defendants. (Docket nos.
scope of discovery under the Federal Rules of Civil Procedure
is traditionally quite broad. Lewis v. ACB Bus.
Servs., 135 F.3d 389, 402 (6th Cir. 1998). Parties may
obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense and proportional
to the needs of the case, considering the importance of the
issues at stake in the action, the amount in controversy, the
parties' relative access to relevant information, the
parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit.
Fed.R.Civ.P. 26. Information within this scope of discovery
need not be admissible in evidence to be discoverable.
Id. “Although a [party] should not be denied
access to information necessary to establish her claim,
neither may a [party] be permitted to ‘go fishing,
' and a trial court retains discretion to determine that
a discovery request is too broad and oppressive.”
Superior Prod. P'ship v. Gordon Auto Body Parts
Co., 784 F.3d 311, 320-21 (6th Cir. 2015) (citing
Surles ex rel. Johnson v. Greyhound Lines, Inc., 474
F.3d 288, 305 (6th Cir. 2007)).
33 and 34 allow a party to serve interrogatories and requests
for production of documents on an opposing party.
Fed.R.Civ.P. 33, 34. A party receiving these types of
discovery requests has thirty days to respond with answers or
objections. Fed.R.Civ.P. 33(b)(2), 34(b)(2)(A). Rule 30
allows a party to conduct a deposition of any person without
leave of court, subject to certain exceptions. Fed.R.Civ.P.
30(a)(1). If the party receiving discovery requests under
Rules 33 or 34 fails to respond properly, or if the person
whose deposition is sought under Rule 30 fails to properly
comply with the rule, Rule 37 provides the party who sent the
discovery the means to file a motion to compel. Fed.R.Civ.P.
37(a)(3). If a court grants a Rule 37 motion to compel, or if
discovery is received after a Rule 37 motion is filed, then
the court must award reasonable expenses and attorney's
fees to the successful party, unless the successful party did
not confer in good faith before the motion, the opposing
party's position was substantially justified, or other
circumstances would make an award unjust. Fed.R.Civ.P.
Rule of Civil Procedure 45 governs subpoenas and provides
that the court must, upon motion, quash or modify a subpoena
if the subpoena fails to allow a reasonable time to comply,
requires a non-party to travel more than 100 miles, requires
disclosure of privileged or protected materials, or subjects
a person to undue burden. Fed.R.Civ.P. 45(d)(3)(A). The court
may quash or modify the subpoena if it requires the
subpoenaed entity to disclose a trade secret or other
confidential research, development, or commercial
matter is before the Court on four discovery motions:
Defendants' motion to compel (docket no. 26);
Plaintiffs' motion to compel (docket no. 34); GPM's
motion to quash (docket no. 15) and SCS's motion to quash
(docket no. 16). The Court will address each motion in turn
Defendants' Motion to Compel 
motion to compel presents nine issues covering thirty four
separate discovery requests. (Docket no. 39.) The Parties
resolved one issue, with Plaintiffs stipulating that they do
not allege lost wages or lost income damages, leading
Defendants to withdraw their Request to Produce no. 11. The
remaining issues will be addressed below.
Social Security Numbers (Interrogatory no. 1)
seek to compel Plaintiffs to disclose their Social Security
numbers. Plaintiffs provided the last four digits of their
Social Security numbers and object to Defendants' request
to compel the entire numbers. On review of the pleadings,
Defendants fail to advance any explanation for the alleged
relevance of Plaintiffs' Social Security numbers, instead
simply asserting that such information “falls within
the scope of discovery.” (Docket no. 26, p. 1.)
a more reasoned argument regarding the relevance of
Plaintiffs' Social Security numbers, the Court has no
basis to compel Plaintiffs to produce such information.
regarding SCS and GPM (Interrogatory no. 4, Requests to
Produce nos. 3, 6, 7)
request various information regarding SCS and GPM. Plaintiffs
object to producing such information, asserting that
“the companies are not parties to this case and . . .
Plaintiffs are parties only in their individual, and not
their representative, capacities.” (Docket no. 39, p.
2.) Defendants contend that information regarding SCS and GPM
is relevant to (1) “the asserted separation
between” Plaintiffs and the LLCs associated with them
and to (2) the LLCs' compliance or noncompliance with
the circumstances of this case, Plaintiffs' basis for
opposing Defendants' requests regarding GPM and SCS-that
those companies are separate and independent corporate
entities-does not withstand scrutiny. Information regarding
those companies is ...