United States District Court, E.D. Michigan, Southern Division
PLUMBERS LOCAL 98 DEFINED BENEFIT PENSION FUND, et al., Plaintiffs,
OAKLAND CONTRACTING CO. d/b/a/ OAKLAND PLUMBING COMPANY, Inc. & MICHAEL J. SCOTT, Defendants.
Page Hood Chief United States District Judge
ORDER DENYING WITHOUT PREJUDICE PLAINTIFFS'
MOTION FOR IMMEDIATE DISCOVERY (ECF No. 6)
MICHAEL J. HLUCHANIUK UNITED STATES MAGISTRATE JUDGE
filed the instant suit on September 5, 2019, alleging that
defendants have failed to pay employee fringe benefit
contributions pursuant to the parties' Collective
Bargaining Agreement. (ECF No. 1). On September 17th,
plaintiffs filed an emergency motion for immediate discovery.
(ECF No. 6). Chief District Judge Denise Page Hood referred
the motion to the undersigned. (ECF No. 7). On October 2,
2019, plaintiff obtained a Clerk's Entry of Default as a
result of defendants' failure to answer the complaint.
(ECF No. 9). Though the named defendants were served with the
pending motion for immediate discovery (see ECF No.
6, PageID.26), they have not responded to the motion.
seek a Court order pursuant to Fed.R.Civ.P. 26(d) permitting
them to conduct early discovery for the purpose of obtaining
the information necessary to pursue construction liens or
bonds. Specifically, plaintiffs seek to depose, duces
tecum, the individual defendant, Michael Scott, and/or
any agent of defendant Oakland Plumbing to obtain information
regarding the identity of projects involving the defendant
company and the specific employees and hours worked on those
projects. (ECF No. 6, PageID.23). Plaintiffs intend to pursue
available liens or payment bonds in the event that defendants
are unable to “fulfill their obligation” under
the Collective Bargaining Agreement, and to do so, they need
certain information. (Id. at PageID.24). According
to the plaintiffs, “time is of the essence”
because there are deadlines that would restrict their ability
to make claims if not followed.
discovery is not warranted in this instance. Plaintiffs are
essentially seeking to obtain discovery in aid of execution
of a judgment. But, although default has been entered against
the defendants, there is no judgment against them as of the
date of this Order. If judgment is entered against the
defendants, plaintiffs may obtain discovery in aid of the
judgment or execution under Fed.R.Civ.P. 69(a)(2), including
conducting a creditor's examination, if necessary.
See, e.g., Lewis v. United Joint Venture,
2011 WL 13201856, at *2 (W.D. Mich. Feb. 24, 2011).
plaintiffs have not demonstrated good cause to allow early
discovery. The Federal Rules of Civil Procedure generally
require a discovery conference under Rule 26(f) prior to the
commencement of discovery. However, under Fed.R.Civ.P. 26(d),
the Court may enter an order permitting discovery in advance
of a scheduling conference. Fed.R.Civ.P. 26(d) (“A
party may not seek discovery from any source before the
parties have conferred as required by Rule 26(f), except ...
when authorized ... by court order.”). In deciding
whether to permit discovery in advance of the Rule 26(f)
conference, the Court should evaluate whether good cause
exists. McCluskey v. Belford High School, 2010 WL
2696599, *1 (E.D. Mich. June 24, 2010) (citing Diplomat
Pharm., Inc. v. Humana Health Plan, Inc., 2008 WL
2923426, at *1 (W.D. Mich. July 24, 2008)); 8A Fed. Prac.
& Proc. Civ. § 2046.1 (3rd ed. 2010)
(“Although the rule does not say so, it is implicit
that some showing of good cause should be made to justify an
order, and courts presented with requests for immediate
discovery have frequently treated the question whether to
authorize early discovery as governed by a good cause
plaintiffs argue that time is of the essence because certain
lien or bond claims have deadlines, they have not
sufficiently demonstrated the need for urgency. Plaintiffs
cite M.C.L. § 570.1109(3) as an example of the need for
urgency. The statute states that a laborer has until the
fifth day of the second month after fringe benefit payments
were due but not paid to file a notice of furnishing to the
designee (as defined in the statute) and the general
contractor named in the notice of commencement. But, plaintiffs
have not demonstrated that the laborers, or union members,
are without the means to identify the general contractors on
the projects for which they provided labor to timely file a
notice of furnishing, unless plaintiffs conduct a deposition.
also state that certain payment bonds have
“timeframes” that must be followed in order to
make claims. (ECF No. 6, PageID.24). They intend to pursue
construction lien or bond claims on defendants' projects
or through direct payments from the general contractors owing
amounts to the defendants. (Id. at PageID.23).
Plaintiffs have not persuaded the Court that there is no
other way to quickly obtain the information necessary to
pursue available liens or bonds at this time, nor have they
cited any other statute or discussed any other deadlines for
filing liens or pursuing bonds that are approaching. Even
assuming deadlines are fast approaching, presumably the
employee members of the union would be able to provide
information to plaintiffs about projects on which they
provided labor, including the locations of the projects and
the number of hours they worked. For these reasons, the
motion for immediate discovery is DENIED WITHOUT
also noteworthy that plaintiffs did not seek concurrence
before bringing this motion (considering the defendants were
not yet in default at the time the motion was filed), as
required by Local Rule 7.1(a). Plaintiffs must follow the
Local Rules of this District. Failure to do so in future may
result in an order striking a motion or pleading.
IS SO ORDERED
parties to this action may object to and seek review of this
Order, but are required to file any objections within 14 days
of service as provided for in Federal Rule of Civil Procedure
72(b)(2) and Local Rule 72.1(d). A party may not assign as
error any defect in this Order to which timely objection was
not made. Fed.R.Civ.P. 72(a). Any objections are required to
specify the part of the Order to which the party objects and
state the basis of the objection. When an objection is filed
to a magistrate judge's ruling on a non-dispositive