Laber v. Long View R.V., Inc. et al
Filing
62
ORDER granting 45 Motion to Compel and denying 51 Cross Motion. Signed by Judge Sarah A. L. Merriam on 12/28/2017. (Tepe, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
JASON R. LABER
:
:
v.
:
:
LONG VIEW R.V., INC. d/b/a
:
LONG VIEW RV SUPERSTORE,
:
et al.
:
:
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Civ. No. 3:17CV00542(AWT)
December 28, 2017
ORDER RE PLAINTIFF’S MOTION TO COMPEL [#45] AND DEFENDANTS’
CROSS MOTION [#51]
On October 30, 2017, plaintiff filed a Motion to Compel
seeking an order directing defendant Long View R.V., Inc. (“Long
View”) to permit an inspection and road test of the vehicle at
issue in this matter. [Doc. #45]. In response, defendants filed
an Opposition to Plaintiff’s Motion to Compel and Cross Motion
for an Order for Inspection. [Doc. #51]. Plaintiff filed a
Reply. [Doc. #54]. For the reasons set forth below, plaintiff’s
motion to compel is GRANTED and defendants’ cross motion is
DENIED.
I.
BACKGROUND
Plaintiff alleges that the 2017 Thor Miramar 34.3 (“the
RV”) he purchased from Long View on or about June 9, 2016, was
delivered with defects. See Doc. #1 at 2. Plaintiff notified
defendants of the alleged defects, and defendants took
possession of the RV and attempted to repair it. See id. at 3-4.
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Ultimately, plaintiff refused to retake possession of the RV
from Long View after determining that the RV’s slide-out system
had not been repaired. See id. at 4. Plaintiff alleges that on
February 23, 2017, he “served written notice on the defendants
that [he] revoked acceptance of the RV.” Id. On April 3, 2017,
plaintiff filed this action seeking damages stemming from his
purchase of the RV. See id.
On October 30, 2017, plaintiff filed a motion to compel,
see Doc. #45, which was referred to the undersigned by Judge
Alvin W. Thompson, see Doc. #46. Plaintiff asks the Court to
issue an order directing Long View to permit plaintiff’s expert
witness, Thomas Bailey, to inspect the RV and conduct a road
test utilizing Long View’s dealer plates. See Doc. #45.
In response, defendants filed “Defendants’ Memorandum of
Law in Opposition to Plaintiff’s Motion to Compel and in Support
of Defendants’ Cross Motion for an Order for Inspection.” Doc.
#51-5. Defendants do not contend that plaintiff’s requests to
inspect the RV and conduct a road test are beyond the scope and
limits of permissible discovery set forth in Rule 26(b) of the
Federal Rules of Civil Procedure. See id. Rather, defendants’
cross motion asks the Court to impose certain restrictions and
limits on plaintiff’s inspection of the RV and to prohibit the
road test unless the RV is properly registered and insured. See
id. Accordingly, the Court construes defendants’ cross motion as
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a motion for a protective order pursuant to Rule 26(c) of the
Federal Rules of Civil Procedure.
On December 12, 2017, the Court held a telephonic status
conference with counsel for all parties and informed them of its
intentions regarding the cross motions to compel and for
protective order. See Doc. #59. The parties requested more time
to address the remaining issues pertaining to insurance and the
timing of the inspection. Therefore, the Court entered an Order
requiring the parties to file a joint notice regarding the
status of these issues. See id. The parties filed a joint
statement on December 22, 2017, which indicated that plaintiff
has secured adequate insurance for the road test, and that the
parties have agreed to a procedure for the inspection and
scheduled it for January 12, 2018. See Doc. #61.
II.
LEGAL STANDARD
Rule 34(a) of the Federal Rules of Civil Procedure states that
“[a] party may serve on any other party a request within the scope
of Rule 26(b) ... to produce and permit the requesting party or its
representative to inspect, copy, test, or sample [any designated
tangible things] in the responding party’s possession, custody, or
control[.]” Fed. R. Civ. P. 34(a)(1). Rule 26(b)(1) of the Federal
Rules of Civil Procedure sets forth the scope and limitations of
permissible discovery:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense
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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. Information within this scope of discovery need
not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). “The party resisting discovery bears the
burden of showing why discovery should be denied.” Cole v. Towers
Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn. 2009).
A party may seek a protective order pursuant to Rule 26(c) of
the Federal Rules of Civil Procedure:
The court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment, oppression,
or undue burden or expense, including[:] ... (A) forbidding
the disclosure or discovery; (B) specifying terms,
including time and place or the allocation of expenses,
for the disclosure or discovery; (C) prescribing a
discovery method other than the one selected by the party
seeking discovery; (D) forbidding inquiry into certain
matters, or limiting the scope of disclosure or discovery
to certain matters; (E) designating the persons who may be
present while the discovery is conducted[.]”
Fed. R. Civ. P. 26(c)(1). “Rule 26(c) confers broad discretion on
the trial court to decide when a protective order is appropriate
and what degree of protection is required.” Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 36 (1984). The burden of showing good cause
for the issuance of a protective order falls on the party seeking
the order. See Brown v. Astoria Fed. Sav. & Loan Ass’n, 444 F.
App’x 504, 505 (2d Cir. 2011). “To establish good cause under Rule
26(c), courts require a particular and specific demonstration of
fact, as distinguished from stereotyped and conclusory statements.”
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Jerolimo v. Physicians for Women, P.C., 238 F.R.D. 354, 356 (D.
Conn. 2006) (citations and quotation marks omitted).
III. DISCUSSION
A. Inspection
Defendants ask the Court to require that the inspection of
the RV be conducted jointly, restricted to the operation of the
slide-out system, and limited to eight hours. See Doc. #51-5 at
2. However, the parties seem to have resolved these issues
without Court intervention, as they filed a joint statement
indicating that they “have agreed upon a procedure for the
inspection.” Doc. #61 at 1. To the extent any of these issues
remain unresolved, defendants have failed to meet their burden
of showing good cause for the issuance of a protective order
pertaining to plaintiff’s inspection of the RV.
Defendants argue that the inspection should be conducted
jointly because “[p]laintiff’s expert has been convicted of
crimes including mail fraud” and they “are concerned that he
will contrive additional defects when he inspects the RV.” Doc.
#51-5 at 2. In response, plaintiff argues that the expert’s
conviction took place in 1989, that the conviction was unrelated
to his current occupation, and that defendants cite no support
for their claim that he will fabricate defects. See Doc. #54 at
3. Plaintiff “does not object to the presence of the defendants’
counsel or expert during the inspection,” Doc. #45-1 at 7, and
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notes that “defendants and their attorneys and expert are free
to observe and videotape the inspection,” Doc. #54 at 3-4. The
Court finds that defendants have failed to meet their burden of
showing good cause to require a joint inspection, as any
concerns regarding plaintiff’s expert can be addressed by
monitoring the inspection either in person or via video.
Defendants further contend that the inspection should “be
restricted to operation of the slide-out system[,]” because
plaintiff admits defendants repaired the other defects and
“[t]he slide-out defect is the only basis Plaintiff gave for
abandoning the RV at Long View’s dealership.” Doc. #51-5 at 2.
Plaintiff responds that “there is no basis to limit the
inspection to the slide-out system[,]” and that they should be
permitted to discover other defects that may exist. Doc. #54 at
3. Defendants do not allege a sufficient basis to limit the
scope of the inspection to the slide-out system. Defendants do
not argue that the slide-out system is the only potential defect
relevant to plaintiff’s claims, nor do they contend that
allowing a full inspection would subject them to annoyance,
embarrassment, oppression, or undue burden or expense.
Finally, defendants assert that the inspection should be
limited to “no more than eight hours,” because this “would give
[plaintiff’s expert] ample time to inspect the allegedly
defective slide-out system.” Doc. #51-5 at 2-3. The parties seem
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to agree that eight hours is sufficient, as plaintiff has
indicated that the entire inspection is expected to last “less
than five hours.” Doc. #45-1 at 10. Therefore, this issue is
moot.
Accordingly, plaintiff’s motion to compel an inspection of
the RV is GRANTED, and defendants’ cross motion for an order of
inspection, which the Court construes as a motion for a
protective order, is DENIED.
B. Road Test
Defendants have also failed to meet their burden of showing
good cause to prohibit a road test entirely. First, defendants
raised concerns in their filings that plaintiff had not provided
proof of insurance for the road test, that plaintiff’s insurance
application indicated “the RV is principally garaged in
Massachusetts when Plaintiff abandoned it at Long View’s
dealership in Connecticut,” and that plaintiff “fail[ed] to
state that a policy would afford additional insured coverage to
Plaintiff’s secured creditor, defendant Ally Bank.” Doc. #51-5
at 4. However, the parties indicated in their joint statement
that plaintiff has now secured insurance that addresses
defendants’ concerns. See Doc. #61 at 1. Consequently, the Court
does not find good cause to issue a protective order on the
basis of inadequate insurance for the road test.
Defendants also argue that Long View cannot put dealer
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plates on the RV for a road test because “the RV belongs to
Plaintiff” until it is determined whether plaintiff’s revocation
of acceptance of the RV was justified. Doc. 51-5 at 3-4.
Plaintiff asserts that Long View owns the RV because plaintiff
revoked his acceptance, regardless of whether the revocation was
justified. See Doc. #45-1 at 9.
The relevant Connecticut dealer plate statute provides that
“[n]o dealer or repairer may loan a motor vehicle or number
plate or both to any person except for ... the purpose of
demonstration of a motor vehicle owned by such dealer[.]” Conn.
Gen. Stat. §14-60. The purpose of the dealer plate statute is to
ensure that all cars on the road are registered, and it sets
limits to ensure that the privilege of using dealer plates is
not abused. See State v. Baron Motors, Inc., 199 A.2d 355, 357
(Conn. Cir. Ct. 1964) (“The purpose of these provisions is to
make effective the statutory provision to require the
registration of motor vehicles and to prevent avoidance
thereof.”); Whitfield v. Empire Mut. Ins. Co., 356 A.2d 139, 144
(Conn. 1975) (upholding the constitutionality of the statute and
indicating its purpose is to clarify which party’s insurance
covers in case of an accident). The statute does not contemplate
a dispute over ownership of the vehicle, as is present here. In
this instance, the very limited scope of the proposed use,
coupled with the fact that plaintiff has obtained insurance, is
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sufficient to satisfy the purpose of the statute. And while the
Court does not find it is necessary to determine ownership of
the RV at this time, plaintiff has sufficiently alleged that
ownership passed to Long View when he revoked his acceptance to
bring this situation within the scope of Conn. Gen. Stat. §1460. Therefore, defendant’s concerns regarding registration of
the RV do not constitute good cause to prohibit the road test.
Accordingly, plaintiff’s motion to compel a road test of
the RV is GRANTED, and defendants’ cross-motion seeking to
prohibit any road test is DENIED.
IV.
CONCLUSION
For the reasons set forth above, plaintiff’s Motion to
Compel [Doc. #45] is GRANTED and defendants’ Cross Motion [Doc.
#51] is DENIED. Defendants shall permit plaintiff’s expert to
inspect the RV and conduct a road test utilizing Long View’s
dealer plates.
This is not a Recommended Ruling. This is an order
regarding discovery which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. See 28 U.S.C.
§636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the District Judge upon motion timely made.
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SO ORDERED at New Haven, Connecticut, this 28th day of
December, 2017.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE
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