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Thomas v. Abercrombie and Fitch Co.

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

March 14, 2018

Melissa N. Thomas, Plaintiff,
Abercrombie & Fitch Co., et al., Defendants.

          Mona K. Majzoub, Mag. Judge


          JUDITH E. LEVY, United States District Judge

         In response to defendants Abercrombie & Fitch Co. and Abercrombie & Fitch Stores, Inc.'s motion for summary judgment on her Telephone Consumer Protection Act (“TCPA”) claim, plaintiff Melissa N. Thomas attempted to use unauthenticated business records from her cellular service provider, AT&T, to show that she did not send a text message authorizing future text messages from defendants. Defendants objected to the admissibility of these records both in their motion for summary judgment and in their reply to the plaintiff's response. At oral argument, the Court engaged in a substantial exchange with plaintiff's counsel inquiring how the records could be admitted.

         The day after oral argument, plaintiff's counsel filed a motion to submit an affidavit from a representative of her cellular service provider authenticating the business records. The Court denied the motion to submit the affidavit, and granted defendants' motion for summary judgment, as plaintiff could offer no admissible evidence in support of her case, and the uncontroverted evidence warranted the grant of summary judgment. (Dkts. 52 and 53.)

         Plaintiff has now filed a combination motion for reconsideration, motion to alter or amend the judgment under Fed.R.Civ.P. 59(e), and motion for relief from the judgment under Fed.R.Civ.P. 60(b)(1) and (6). (Dkt. 57.)

         I. Legal Standard

         Plaintiff has filed her motion as one for reconsideration under E.D. Mich. Local R. 7.1(h), one to alter or amend the judgment under Fed.R.Civ.P. 59(e), and one for relief under Fed.R.Civ.P. 60(b)(1) and (6). Plaintiff's motion is untimely under Local Rule 7.1(h)(1), which requires that motions for reconsideration be filed within fourteen days after entry of the judgment or order. The motion was timely filed under Rules 59 and 60.

         “A motion under Rule 59(e) is not an opportunity to re-argue a case.” Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998). “Parties should not use them to raise arguments which could, and should, have been made before judgment issued. Motions under Rule 59(e) must either clearly establish a manifest error of law or must present newly discovered evidence.” Id. (citing FDIC v. World Univ. Inc., 978 F.2d 10, 16 (1st Cir. 1992)).

         Rule 60(b)(1) provides relief in one of two instances: “(1) when the party has made an excusable litigation mistake or an attorney in the litigation has acted without authority; or (2) when the judge has made a substantive mistake of law or fact in the final judgment or order.” Cacevic v. City of Hazel Park, 226 F.3d 483, 490 (6th Cir. 2000). Rule 60(b)(6) permits relief from a judgment or order for “any other reason that justifies relief” not already set forth in subsections (1)-(5) of Rule 60. It may be applied only in “unusual and extreme situations where principles of equity mandate relief.” Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990) (emphasis in original).

         II. Analysis

         Fed. R. Civ. P. 56(c)(2) states that “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” “[O]nce an objection is properly made, the proponent must ‘show that the material is admissible as presented or . . . explain the admissible form that is anticipated.'” Mangum v. Repp, 674 Fed.Appx. 531, 536-37 (6th Cir. 2017) (citing Fed R. Civ. P. 56(c) advisory committee's note to 2010 amendment).

         Fed. R. Civ. P. 56(e) states that “[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it; or (4) issue any other appropriate order.” In their motion for summary judgment, defendants argued that the AT&T records plaintiff provided were “woefully short of admissible evidence.” (Dkt. 37 at 32.) Plaintiff provided the records in her response, and they did not contain a certification from a representative of AT&T as required by Fed.R.Evid. 803(6)(D) to show that business record are admissible. (Dkt. 42-2.) In their reply, defendants argued at length that the records were inadmissible. (Dkt. 43 at 6-7.)

         At oral argument on October 5, 2017, the Court asked plaintiff's counsel how plaintiff would authenticate the AT&T records, and plaintiff's counsel first stated that plaintiff could authenticate the records (Dkt. 47 at 16-17, 19-20), then appeared to confuse the documents provided in response to the motion for summary judgment with the cellular billing records she provided in response to defendants' motion to dismiss. (Id. at 17-18.) Plaintiff also argued that she was not required to respond to the objection, because it was raised for the first time in defendant's reply brief. (Id. at 20-21, 27.) Only after repeated questioning did plaintiff's counsel state that “[w]hat we would do [to make these records admissible] is simply get an affidavit from somebody at AT&T that their records are accurate.” (Id. at 22.)

         On October 6, 2017, plaintiff filed a motion for leave to file a corrected version of the records containing the affidavit certifying the AT&T records as business records. (Dkt. 46.) Plaintiff stated that the reason she did not provide the affidavit, which she received on March 16, 2017, is because her counsel overlooked it. (Dkt. 46 at 2.) The parties agreed in their briefing that the applicable rule was Fed.R.Civ.P. 6(c)(2), governing the filing of affidavits support or opposing a motion. The Court denied the motion, because plaintiff failed to show good cause for the late-filed affidavit, and granted defendants' motion for summary judgment. (Dkts. 52 and 53.)

         Plaintiff now argues the following in her motion under Rules 59(e) and 60(b): (1) she attached a different document, her cell phone billing records, to her response to defendants' prior motion to dismiss, and the Court should have considered those records; (2) the Court erred by treating plaintiff's motion to amend her phone records as a motion for extension of time; (3) the affidavit was not required at all by Rule 56(c), because a party does not have to provide admissible evidence until the opposing party objects; (4) Rule 56(e) requires that a party be allowed to submit late-filed affidavits; (5) plaintiff met her burden under Rule 56(c) of showing the records were admissible at trial; and (6) the records were admissible because they were either self-authenticating under Fed.R.Evid. 902(7) or because the records were not hearsay. In her reply in support of this motion, plaintiff notes for the first time that during oral argument on the motion for summary judgment, her counsel stated that plaintiff could obtain an affidavit authenticating her phone records. (Dkt. 62 at 2.)

         A. Plaintiff Did Not Reference or Direct the Court to the Billing Records Attached to the Response to the Motion to Dismiss

         The cell phone billing records plaintiff provided in response to defendants' motion to dismiss (Dkt. 27) were not referenced in her response to defendants' motion for summary judgment. The Court has no duty to scour the record to find factual support for a party's claims. Magnum Towing & Recovery v. City of Toledo, 287 Fed.Appx. 442, 449 (6th Cir. 2008) (“It is not the district court's . . . duty to search through the record to develop a party's claims; the litigant must direct the court to evidence in support of its arguments before the court.”) Further, it is not the Court's duty to search through the record attached to a different filing altogether.

         B. The Court Did Not Err in Denying Plaintiffs' Motion to File the Untimely Affidavit

         Plaintiff argues that the Court erred by applying Fed.R.Civ.P. 6(c)(2) to her motion for leave to file the affidavit of the custodian of AT&T's business records. Plaintiff argues instead that “Federal Rule 56 was amended in 2010 to eliminate ...

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