Physicians Healthsource, Inc. v. A-S Medication Solutions LLC et al
ENTER MEMORANDUM Opinion and Order: PHI's motion to strike, ECF No. 238 , is denied, and its motion for summary judgment, ECF No. 215 , is denied without prejudice. A status conference is set for September 22, 2017, at 9:30 a.m. to make a plan for conducting further discovery. Signed by the Honorable Joan B. Gottschall on 9/7/2017. Mailed notice(mjc, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF
ILLINOIS EASTERN DIVISION
PHYSICIANS HEALTHSOURCE, INC.,
an Ohio corporation, individually and on
behalf of similarly situated persons,
A-S MEDICATION SOLUTIONS, LLC,
JAMES BARTA, WALTER HOFF and
JOHN DOES 1-10,
Case No. 12-cv-05105
Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
In this class action, the plaintiff, Physicians Healthsource, Inc. (“PHI”), claims that the
defendants, primarily A-S Medication Solutions, LLC (“A-S”), 1 violated the Telephone
Consumer Protection Act of 1991 (“TCPA”), as amended, 47 U.S.C. 227 et. seq., by sending an
advertisement to 11,422 fax numbers in 2008. After nearly three years of discovery, the court
certified this case as a class action in September 2016. Plaintiff sent notice to the class, and PHI
then filed a motion for summary judgment.
But briefing on that motion has stalled due to a dispute over the declarations of putative
class members; the declaration of Yaniv Schiff (“Schiff”), a designated expert, dated February
20, 2017; and an accompanying spreadsheet attached to A-S’s Local Rule 56.1(b)(3) statement of
additional facts (“A-S SOF”), ECF No. 227, (collectively “the disputed evidence”). PHI
contends that A-S violated Federal Rule of Civil Procedure 26(a)(1) and (2) by failing to make
disclosures about the disputed evidence before discovery closed in December 2015 (the date on
PHI also names James Barta, Walter Hoff, and John Does 1-10 as defendants. The court employs the singular “AS” for simplicity’s sake.
which discovery closed is disputed, but the court does not resolve that dispute today). PHI
moves under Rule 37(c)(1) to strike the disputed evidence and the portions of A-S’s summary
judgment response that refer to the disputed evidence. As explained below, any nondisclosure
was harmless under Rule 37(c)(1) because PHI was complicit in bringing about the only
prejudice it claims to have suffered. Accordingly, the court denies PHI’s motion to strike.
I. PROCEDURAL HISTORY
After two initial rounds of motion practice on the sufficiency of the complaint, PHI filed
its amended complaint, ECF No. 38, and first motion for class certification, ECF No. 39, on
April 2, 2013. Discovery began, and the court referred the case to the assigned magistrate judge
for discovery supervision on September 4, 2013. ECF No. 51. The court entered an order on
November 26, 2013, denying the first motion for class certification without prejudice. ECF No.
57. The order stated that “[a]s Rule 23 discovery is ongoing in this case, Plaintiff’s Motion to
certify class is denied without prejudice, in the interest of judicial economy.” Id. (citation
Discovery continued. See, e.g., Status Report & Proposed Schedule, Mar. 14, 2014, ECF
No. 62; Am. Protective Order, May 14, 2014, ECF No. 75. A-S’s third motion to compel
culminated in the entry of an order by the magistrate judge on September 18, 2014. That order
The discovery schedule is amended pursuant to the parties’ joint
stipulation. All Rule 23 fact discovery to be completed by
2/2/2015. Plaintiff to provide disclosures and reports from
Plaintiff’s Rule 23 opinion witness(es) on or before 3/2/2015.
Defendants to depose Plaintiff’s Rule 23 opinion witness(es) and
provide Defendants’ Rule 23 opinion witness(es) disclosures and
reports on or before 3/30/2015. Plaintiff to depose Defendants’
Rule 23 opinion witness(es) on or before 4/30/2015. Plaintiff’s
Rule 23 rebuttal witness(es) to be disclosed and opinion report(s)
served on or before 5/14/2015. Defendants to depose Plaintiff’s
Rule 23 rebuttal witness(es) by 5/28/2015.
ECF No. 90. After this point, explicit references to Rule 23 discovery drop from the docket.
Later docket entries use unqualified language to set discovery deadlines, as though the deadlines
set controlled discovery on all issues rather than just class issues. See, e.g., ECF No. 103 (“All
expert discovery to be completed by 8/31/2015.”).
The subsequent discovery deadlines nonetheless trace their lineage to the September 18,
2014, minute entry. 2 The path of explicit deadlines runs from September 18, 2014, ECF No. 90,
to October 9, 2015. 3 On October 9, 2015, the parties reported only one outstanding factdiscovery issue, a Rule 30(b)(6) deposition. Minute Entry, Oct. 9, 2015, ECF No. 138. That
issue provoked some further litigation. See Minute Entry, Nov. 9, 2015, ECF No. 143 (deciding
third party’s motion for relief from discovery order). The magistrate judge held a status
conference on December 10, 2015. The minute entry for that conference reads: “The parties
report that discovery has been completed.” ECF No. 145.
This court then set a status conference, ECF No. 146, and PHI moved for class
certification, ECF No. 147. A-S first filed the declarations of putative class members that are the
subject of the instant motion to strike with its response to the motion to certify on May 13, 2016.
ECF No. 254 at 5; compare ECF Nos. 171-5, 171-6, 171-15, 171-16, and 171-17 with ECF Nos.
227-7, 227-8, 227-9, 227-10, and 227-11. The court granted the motion for class certification on
The parties’ filings during the same period reflect a similar understanding. On April 15, 2015, the magistrate judge
directed the parties to file a status report that, among other things, “set[ ] forth the parties’ respective positions on
whether the fact discovery deadline should be extended and, if so, the proposed new deadline.” Minute Entry, ECF
No. 114. The parties traced the discovery deadline to ECF No. 103, which modified the deadline for Rule 23 fact
discovery first set on September 18, 2014. See ECF No. 115 ¶ 2; see also Mot. to Extend Disc. Deadline ¶ 1, Aug.
27, 2015, ECF No. 132 (citing July 1, 2015, order as controlling discovery cut-off).
See Minute Entry, Jan. 30, 2015, ECF No. 103 (extending “the deadline for completing fact discovery” to June 1,
2015, by parties’ agreement); Minute Entry, Apr. 30, 2015, ECF No. 116 (extending fact discovery, as parties
proposed, to July 1, 2015); Minute Entry, July 1, 2015, ECF No. 121 (extending fact-discovery deadline to Aug. 31,
2015, without opposition from PHI); Minute Entry, Aug. 27, 2015, ECF No. 134 (granting agreed motion to extend
fact-discovery deadline to Sept. 25, 2015).
September 27, 2016. Physicians Healthsource, Inc. v. A-S Medication Solutions, LLC, 318
F.R.D. 712, 725 (N.D. Ill. 2016). After sending notice to the class members, the parties
announced at a status conference held December 9, 2016, in response to the court’s inquiry, that
they did not need to take further discovery. Consistent with its representations at that hearing,
PHI then filed a motion for summary judgment, and A-S filed a response to that motion. A-S
cites the declarations of class members generally to show that “[c]lass members also specifically
gave A-S Medication permission to send them fax advertisements because they wanted to stay
apprised of A-S Medication’s products.” A-S SOF ¶ 19, ECF No. 227. Also, Schiff’s declaration
dated February 20, 2017, ECF No. 227-14 Ex. N, and a spreadsheet he prepared, ECF No. 22715, Ex. O, number among the exhibits supporting A-S’s Local Rule 56.1(b)(3) statement of
additional facts. See A-S SOF ¶¶ 22–23, ECF No. 227. A-S relies on Schiff’s analysis of
publicly available government data, described in his declaration, and the spreadsheet for the
proposition that “[t]here are on average more than five other provider organizations or persons
associated with each of the 11,422 unique numbers identified in the fax log at issue here.” Id.
II. RULE 26(a) DISCLOSURES
In most cases, including this one, Federal Rule of Civil Procedure 26(a)(1) requires
parties to make certain initial disclosures “without awaiting a discovery request.” Fed. R. Civ. P.
26(a)(1) (allowing court to order otherwise); but see id. R. 26(a)(1)(B) (exempting certain types
of cases). Under Rule 26(e), a party must supplement its disclosures “in a timely manner if the
party learns that in some material respect the disclosure or response is incomplete or incorrect,
and if the additional or corrective information has not otherwise been made known to the other
parties during the discovery process.” Id. R. 26(e)(1)(A).
Rule 37(c)(1) supplies a remedy for initial-disclosure and supplementation violations. It
provides, in part, that “[i]f a party fails to provide information or identify a witness as required
by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c)(1). The Seventh Circuit has held that “[t]he exclusion of nondisclosed evidence is ‘mandatory under Rule 37(c)(1) unless non-disclosure was justified or
harmless.’” Rossi v. City of Chicago, 790 F.3d 729, 737–38 (7th Cir. 2015) (quoting Musser v.
Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir. 2004)); accord Cripe v. Henkel Corp., 858
F.3d 1110, 1112 (7th Cir. 2017) (citing Hassebrock v. Bernhoft, 815 F.3d 334, 341 (7th Cir. 2016)
and Novak v. Bd. of Trs. of S. Ill. Univ., 777 F.3d 966, 972 (7th Cir. 2015)). Rule 37(c)(1) allows
the court to impose lesser sanctions “[i]n addition to or instead of this sanction.” See Malik v.
Falcon Holdings, LLC, 675 F.3d 646, 649–50 (7th Cir. 2012) (citing Ball v. City of Chicago, 2
F.3d 752 (7th Cir. 1993)) (“[Rule 37] gives the judge discretion to match a remedy to the
wrong.”); Dynegy Mktg. & Trade v. Multiut Corp., 648 F.3d 506, 514 (7th Cir. 2011) (“Whether a
failure to comply with Rule 26(a) or (e) is substantially justified, harmless, or warrants sanctions
is left to the broad discretion of the district court.” (citing David v. Caterpillar, Inc., 324 F.3d
851, 857 (7th Cir. 2003))).
A. PHI Should Have Conferred with A-S as Local Rule 37.2 Requires Before Filing Its
Motion to Strike
A-S begins with a procedural argument of its own. It asserts that PHI’s motion should be
denied outright because it did not comply with the conference requirement of Local Rule 37.2,
which reads, in its entirety:
To curtail undue delay and expense in the administration of justice,
this court shall hereafter refuse to hear any and all motions for
discovery and production of documents under Rules 26 through 37
of the Federal Rules of Civil Procedure, unless the motion includes
a statement (1) that after consultation in person or by telephone
and good faith attempts to resolve differences they are unable to
reach an accord, or (2) counsel’s attempts to engage in such
consultation were unsuccessful due to no fault of counsel’s. Where
the consultation occurred, this statement shall recite, in addition,
the date, time and place of such conference, and the names of all
parties participating therein. Where counsel was unsuccessful in
engaging in such consultation, the statement shall recite the efforts
made by counsel to engage in consultation.
N.D. Ill. L.R. 37.2.
The parties and the cases disagree about whether Local Rule 37.2 applies to a motion to
strike under Rule 37(c)(1). A-S’s position that no Local Rule 37.2 conference is required before
filing a Rule 37(c)(1) motion finds support in Judge Cole’s opinion in Finwall v. City of Chicago,
239 F.R.D. 494 (N.D. Ill. 2006). Judge Cole held that a Rule 37(c)(1) motion is not a “discovery
motion” under Local Rule 37.2 because exclusion of material attached to a motion is automatic
when Rule 37(c)(1)’s prerequisites are satisfied. Id. at 500 (citations omitted); see also Jackson
v. City of Chicago, No. 03 C 8289, 2006 WL 2224052, at *10 (N.D. Ill. July 31, 2006) (Filip, J.)
(citing Finwall and endorsing its reasoning to decide a related question). At least one other judge
of this court has denied a Rule 37(c)(1) motion because it lacked a Local Rule 37.2 certification,
however. Jones v. Union Pac. R.R. Co., No. 12 C 771, 2015 WL 5252958, at *15–16 (N.D. Ill.
Sept. 8, 2015) (Lefkow, J.).
Local Rule 37.2’s introductory clause declares its purpose: “To curtail undue delay and
expense in the administration of justice . . . .” By requiring parties to confer, Local Rule 37.2
attempts to weed out disputes that can be amicably resolved without judicial intervention,
thereby freeing the court’s resources for disputes that truly cannot. Chamberlain Grp. v. Lear
Corp., No. 05 C 3449, 2010 WL 2836975, at *1 (N.D. Ill. July 15, 2010) (“Each hour needlessly
spent on a dispute is an hour squandered.” (citing Chi. Observer, Inc. v. City of Chicago, 929
F.2d 325, 329 (7th Cir. 1991))); Autotech Techs. Ltd. P’ship v. Automationdirect.com, Inc., No. 05
C 5488, 2007 WL 2736681, at *2 (N.D. Ill. Sept. 10, 2007) (Cole, Mag.J.).
The results in Finwall and Jones can be understood as products of their respective
procedural postures. The odds that a conference would lead to an amicable, out-of-court solution
change depending on whether the Rule 37(c)(1) motion was filed before or after a scheduled
expert deposition. The plaintiff in Jones argued before an expert deposition that the expert report
in question failed to disclose certain measurements on which the expert based his opinion. See
2015 WL 5252958, at *16. As a result, the plaintiff took the position that his counsel could not
adequately cross examine the expert at his deposition. Id. Had the parties conferred about the
calculations, however, they might well have devised a more cost-effective way of resolving their
dispute than full-blown motion practice, and that method may have included disclosure of the
calculations to be vetted. That disclosure could well have occurred before the expert’s deposition
itself, so the Jones court decided that the Rule 37(c)(1) motion was a discovery motion under
Local Rule 37.2. See id.
In Finwall, by contrast, no predeposition disclosure seems to have been possible, and so
the court there concluded that a party with a Rule 37(c)(1) claim would be unlikely to
compromise because Rule 37(c)(1)’s remedy is automatic. See Finwall, 239 F.R.D. at 500. To
think that litigants will always, or even often, maximize their own self-interest and avoid
unnecessary motion practice would be naive. Cf. AMPAT/Midwest, Inc. v. Ill. Tool Works Inc.,
896 F.2d 1035, 1043 (7th Cir. 1990) (“Litigation arises from the pathology of social interactions,
so we should not be surprised that often parties to litigation appear to have acted from
incomprehensible motives, behaved irrationally, misconceived their self-interest, exhibited
bizarre deviations from rationality.”). Nevertheless, when a disclosure issue arises, the parties
have some incentive to find a solution other than motion practice. They face uncertainty over
whether the disclosure was required at all and, if it was, whether the court will find the
nondisclosure to be substantially justified. See Fed. R. Civ. P. 37(c)(1). In light of these
uncertainties, a conference could lead to a cheaper and less risky disclosure, as was possible
before the expert deposition in Jones. But when the nondisclosure rears its head for the first time
after discovery has closed as it did in Finwall, little incentive remains to compromise.
Nonetheless, Local Rule 37.2 does not speak in probabilities; it simply requires a conference.
Litigants should not have to undertake a detailed analysis of each case’s procedural posture and
the odds of a conference being productive to decide whether one is required. Jones demonstrates
that a significant percentage of disputes that precipitate a Rule 37(c)(1) motion can be resolved
through a conference leading to further discovery. Local Rule 37.2’s text and the need for brightline rules in this area are enough to require a Local Rule 37.2 conference before the filing of all
Rule 37(c)(1) motions.
As Judge Cole recognized in Finwall, the doctrine of futility applies to Local Rule 37.2,
and it may be invoked as a safety valve when requiring a conference would be ridiculous. See
Finwall, 239 F.R.D. at 500–01 (concluding in the alternative that any conference would have
been futile); Autotech, 2007 WL 2736681, at *1–2 (citing Murata Mfg. Co. v. Bel Fuse, Inc., 242
F.R.D. 470, 474 (N.D. Ill. 2007)) (acknowledging authority to excuse noncompliance under
futility doctrine but deciding not to do so based on case’s circumstances). But litigants should
not treat the futility doctrine as an invitation to bypass the straightforward requirements of Local
Rule 37.2. Cf. Slaven v. Great Am. Ins. Co., No. 11 C 7993, 2014 WL 4470723, at *2 (N.D. Ill.
Sept. 11, 2014) (observing that Local Rule 37.2’s commands “could not be more explicit”).
In the case at bar, PHI did not comply with Local Rule 37.2’s conference requirement,
and A-S makes no effort to show that doing so would have been futile beyond recapitulating
Finwall’s reasoning on Local Rule 37.2. See Resp. Supp. Mot. to Strike 14–15, ECF No. 254.
As discussed in the next part of this opinion, the parties had an opportunity to confer about the
class members’ declarations before the summary judgment motions were filed. Like the motion
in Jones, PHI’s Rule 37(c)(1) motion must therefore be denied for failing to comply with Local
Rule 37.2 alone.
B. Failure to Disclose Class Members’ Declarations Was Harmless Because PHI Could
Have Avoided Its Wasted Effort at Summary Judgment
The Seventh Circuit has repeatedly warned in Rule 37(c)(1) cases that “[i]n the normal
course of events, justice is dispensed by the hearing of cases on their merits.” Musser v. Gentiva
Health Servs., 356 F.3d 751, 760 (7th Cir. 2004) (quoting Salgado ex rel. Salgado v. Gen. Motors
Corp., 150 F.3d 735, 740 (7th Cir. 1998)) (brackets in original). Because a trial date has not been
set, discovery could be reopened and new summary judgment motions filed, but the court need
not do that if the additional cost and burden inflicted on the party moving for Rule 37(c)(1)
sanctions is unjustified. See id. (“[I]t is not an abuse of discretion to conclude that the additional
costs to Gentiva of preparing a new summary judgment motion and further delay in extending
the trial date are not harmless.” (citing Dura Auto. Sys. of Ind., Inc., v. CTS Corp., 285 F.3d 609,
616 (7th Cir. 2002))). While A-S will bear additional costs as a result of reopening discovery, its
complicity in creating that problem convinces the court that allowing further discovery is the
Judge Cole denied a Rule 37(c)(1) motion to strike filed by PHI last year in another junkfax case, refusing to reward its “ostrich-like approach to legal issues.” Physicians Healthsource,
Inc. v. Allscripts Health Solutions, Inc., No. 12 C 3233, 2016 WL 7034074, at *5 (N.D. Ill. Dec.
2, 2016) (citations omitted). Just as in this case, the defendant attached fourteen declarations of
class members to its summary judgment response; the class members generally averred that they
had consented to receiving faxes. See id. at *1, 5. Judge Cole reasoned that PHI “knew that
consent would be a critical issue” because “its own Complaint said so and seemed to relegate
proof on that score to the plaintiff.” Id. at *5. PHI, explained Judge Cole, had an “ample
opportunity” to cure any prejudice; it had “a month and a half during which plaintiff could have
addressed this issue with a motion to strike or, in the case of the motion for summary judgment,
with a motion under Fed. R. Civ. P. 56(d) for some additional discovery.” Id. at *6.
If anything, PHI exhibited even more ostrich-like behavior here. 4 As PHI points out, this
court ruled in its decision certifying a class that the defendants have the burden to prove consent.
318 F.R.D. at 722 (citations omitted). But the court also described consent as a contested issue
three times in that opinion. 5 See id. at 718 & n.2, 723. PHI admits that it knew about the
declarations no later than May 2016 when A-S filed them with its response to the motion to
certify. Reply Supp. Mot. to Strike 5, ECF No. 254 (stating date was May 13, 2016).
Nevertheless, neither party mentioned the declarations or PHI’s nondisclosure contentions at the
December 2016 status conference. Given the court’s decision and the filing of the declarations
almost seven months earlier, PHI effectively ignored the elephant in the room regardless of the
burden of proof. See Allscripts, 2016 WL 7034074, at *5–6. The parties forged ahead in the
As the Seventh Circuit has noted more than once, contrary to the popular belief, ostriches do not bury their heads
in the sand when they become frightened. United States v. Ramirez, 574 F.3d 869, 876 n.2 (7th Cir. 2009) (citing
United States v. Black, 530 F.3d 596, 604 (7th Cir. 2008)) (discussing jury instruction nicknamed “the ostrich
instruction”). If an ostrich cannot run from the danger it perceives, it “‘flops to the ground and remains still, with its
head and neck flat on the ground in front of it’ and merely looks as if it has buried its head in the sand.” Id. (quoting
Black, 530 F.3d at 604).
The parties disagree about whether the December 10, 2015 announcement to the magistrate judge that discovery
was complete marked the end of class discovery or all discovery. As explained in note 3, supra, the discovery
deadlines set by the magistrate all trace to what were called Rule 23 deadlines. The parties point to nothing in the
record shedding light on whether the scope of discovery intentionally expanded or whether the omission of Rule 23
references was a clerical oversight. Because the disposition of PHI’s motion to strike does not change even if PHI is
correct that all discovery closed in December 2015, the court leaves this issue for another day.
elephant’s shadow, announcing in December 2016 that at least one motion for summary
judgment was forthcoming. The court asked the attorney representing each party whether all
discovery had been completed; both attorneys replied that it had. No trial date had been set. Had
the parties mentioned the declarations in December 2016, discovery could have been reopened
without any party incurring the expense of briefing on summary judgment.
Put another way, the only prejudice PHI claims (the expense of preparing a motion for
summary judgment) is largely a self-inflicted wound. Rule 37(c)(1) should be applied in a
manner that expedites litigation’s progress to a just, speedy, and inexpensive resolution. See
Salgado, 150 F.3d at 742–43 & n.6 (affirming imposition of Rule 37(c)(1) sanction and stating
that “the court has a right, independent of the parties, to conduct trial preparation in a manner
that husbands appropriately [its] scarce judicial resources”). To that end, courts, in their
discretion, decline to impose Rule 37(c)(1) sanctions to reward improper gamesmanship that
delays litigation—something the Advisory Committee warned against when it began requiring
initial disclosures in 1993. Robinson v. Champaign Unit 4 Sch. Dist., 412 F. App’x 873, 877 (7th
Cir. 2011) (reiterating that the Rule 26(a) disclosures should not be read “to encourage litigants
to ‘indulge in gamesmanship with respect to the disclosure obligations’” (quoting Fed. R. Civ. P.
26(a)(1) advisory committee’s note (1993) (other citation omitted)); see also, e.g., Malibu Media
LLC v. Doe, No. 13 C 6312, 2016 WL 464045, at *13 (N.D. Ill. Feb. 8, 2016) (rejecting “effort to
add new opinions to [expert]’s original declaration [as] gamesmanship under the guise of
supplementation”); Allen v. Int’l Truck & Engine, No. 1:02-cv-0902-RLY-TAB, 2006 WL
2578896, at *15 (S.D. Ind. Sept. 6, 2006) (imposing lesser sanction because “Plaintiffs’ counsel’s
failure to promptly notify the Defendant of the inadvertently filed billing records amounted to
needless gamesmanship”). Some have made the point by observing that the prejudice flowing
from a disclosure violation is a self-inflicted wound. See Sullivan v. Dolgencorp, LLC, No 13cv-724-jdp, 2014 WL 6687569, at *3 (W.D. Wis. Nov. 26, 2014) (citing Ackermann v. Powers,
No. 04-C-845-C, 2005 WL 1432369, at *1 (W.D. Wis. June 16, 2005)) (declining to sanction
party for late disclosures because “waiting and seeking extreme sanctions [of exclusion] was the
wrong approach” and so much of the prejudice from late disclosures was “self-inflicted”); Large
v Mobile Tool Int’l, Inc., No. 1:02-CV-177, 2008 WL 4238963, at *10–11 (N.D. Ind. Sept. 10,
2008) (denying motion to strike expert report because defendant “waited 51 days after the
disclosure to file the current motion to strike,” so defendant’s difficulties were “of its own
making”). In light of these authorities and the purposes Rule 37(c)(1) sanctions serve, PHI
largely complains of a problem of its own making when it claims prejudice here; and so the
nondisclosure of the fourteen declarations was instead harmless under Rule 37(c)(1).
C. Further Discovery Is Warranted
The court’s conclusion that the failure to disclose the class members’ declarations was
harmless renders further analysis unnecessary. As a backup argument, PHI requests an
opportunity to depose Schiff again. Reply Supp. Mot. to Strike 15, ECF No. 254. Even if the
failure to disclose Schiff’s February 2017 declaration was not harmless, any prejudice can be
cured during the discovery period necessitated by the filing of the fourteen declarations of class
Finally, the parties effectively agree that a new round of summary judgment briefing will
be necessary after further discovery. Indeed, were the court to hold the motion summary
judgment in abeyance pending a reply, A-S would not have the chance to be heard on how
discovery affected the arguments raised in PHI’s motion for summary judgment. Neither PHI
nor A-S believes adjudicating PHI’s motion for summary judgment without further discovery is
appropriate. Cf. Fed. R. Civ. P. 56(d). In these circumstances, nothing would be gained by
keeping the motion for summary judgment pending. 6 See OneBeacon Ins. Co. v. U.S. Foods,
Inc., 304 F.R.D. 536, 541–43 (N.D. Ill. 2014) (granting motion for additional discovery under
Rule 56(d) “[b]ecause discovery may allow U.S. Foods to produce a valid defense”); Parker v.
EMC Mortg. Corp., No. 11-cv-05682, 2014 WL 7205474, at *5, 6 (N.D. Ill. Dec. 18, 2014)
(denying motion for summary judgment without prejudice “[i]n light of the anticipated . . .
additional discovery permitted by this ruling”); Hu v. Vill. of Maywood, No. 07-cv-7203, 2010
WL 276704, at *4–5 & n.5 (N.D. Ill. Jan. 19, 2010) (denying motion for summary judgment
without prejudice to allow additional discovery even though party’s motion for additional
discovery was not sufficiently specific because “a number of courts have recognized that courts
can deny or continue a motion for summary judgment to permit further discovery pursuant to
Rule 56(f)[, not Rule 56(d),] sua sponte”).
For the reasons stated, PHI’s motion to strike, ECF No. 238, is denied, and its motion for
summary judgment, ECF No. 215, is denied without prejudice. A status conference is set for
September 22, 2017, at 9:30 a.m. to make a plan for conducting further discovery.
Date: September 7, 2017
Joan B. Gottschall
United States District Judge
On August 18, 2017, A-S, with leave of court, brought to the court’s attention a case decided after briefing on the
pending motions was complete, Krakauer v. Dish Network, LLC, No. 1:14-CV-333, 2017 WL 3206324, at *5–7
(M.D.N.C. July 27, 2017). The court has reviewed Krakauer, but A-S contends that Krakauer affects the motion for
summary judgment, not its motion to strike. See Mot. Leave Cite Supplemental Authority ¶¶ 4–7, ECF No. 256.
Because the court does not reach the summary judgment motion, it need not discuss Krakauer today. Of course, the
parties remain free to cite and discuss Krakauer in the future if they wish.
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