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Bahorski v. City of Eastpointe

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

November 14, 2017


          District Judge Marianne O. Battani



         This 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.)

         All 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 7.1(f)(2).

         I. BACKGROUND

         Plaintiffs 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”).

         Plaintiffs 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.

         Plaintiffs 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.”

         Plaintiffs 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 ordinances.

         Defendants 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.

         On June 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.)

         On June 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. 15, 16.)


         The 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)).

         Rules 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. 37(a)(5)(A).

         Federal 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 information. Id.

         III. ANALYSIS

         This 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 below.

         A. Defendants' Motion to Compel [26]

         Defendants' 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.

         1.Plaintiffs' Social Security Numbers (Interrogatory no. 1)

         Defendants 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.)

         Absent a more reasoned argument regarding the relevance of Plaintiffs' Social Security numbers, the Court has no basis to compel Plaintiffs to produce such information.

         2.Information regarding SCS and GPM (Interrogatory no. 4, Requests to Produce nos. 3, 6, 7)

         Defendants 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 Eastpointe ordinances.

         Under 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 ...

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