Harco National Insurance Company v. Sleegers Engineering, Incorporated et al
Filing
127
ORDER denying 98 MOTION to Compel Production of Exemplar, Directing Service of Order on Schwans Food Company, Cancelling Hearing and Denying 120 MOTION TO EXTEND Dates. Signed by District Judge Thomas L. Ludington. (SGam)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
HARCO NATIONAL INSURANCE COMPANY,
Plaintiff,
v
Case No. 06-cv-11314
Honorable Thomas L. Ludington
SLEEGERS ENGINEERING, INC., et al.,
Defendants.
__________________________________________/
ORDER DENYING MOTION TO COMPEL, DIRECTING SERVICE OF ORDER
ON SCHWANS FOOD COMPANY, CANCELLING HEARING, AND
DENYING MOTION TO EXTEND DATES
This litigation arises out of a Schwans food truck that ignited while Zaremba’s employees
were providing maintenance. The resulting fire substantially damaged Zaremba’s business.
Harco, as Zaremba’s subrogee, seeks funds from Defendants that it contends were responsible
for the design of the fuel system in the Schwans food truck.
On June 19, 2014, Harco filed a motion to compel production of exemplar against
Schwans Food Service. The main thrust of Harco’s motion seeks an order from this Court
requiring Schwans to produce an exemplar of the truck that allegedly caused the destructive fire.
Although the brief in support of the motion to compel focuses almost exclusively on the
questions of whether the exemplar produced by Schwans was adequate, Harco also requests that
this Court (1) “allow Harco to depose Ryan Lamb regarding the installation by Monroe Truck”;
and (2) “compel Schwans to identify by part number all component pieces supplied to Monroe
Truck and Zaremba for installation on the subject truck. . . .” Mot. Compel 6, ECF No. 98.
Harco’s motion to compel a deposition of Ryan Lamb will be denied because Mr. Lamb
is an employee of Defendant Monroe Trucks, not Schwans. In addition, the motion to compel
will also be denied because this Court lacks authority to order a non-party, Schwans, to engage in
discovery absent Harco’s procedural compliance with the Federal Rules of Civil Procedure.
I
The issue raised by Harco’s June 19, 2014 motion is whether the truck produced by
Schwans on April 21, 2008,1 was an exemplar of the truck that caught fire on February 21, 2003.
Harco advances only one argument concerning the truck that Schwans produced: that it was not
an exemplar because it contained a different fuel outlet. According to Harco’s expert’s affidavit,
the truck had “the fuel outlet on the tanks . . . outside the tank cover.” Mot. Compel, Ex. A. at ¶
7. And because the original truck had a fuel outlet that “was not separate from the tank cover,”
id. at ¶ 8, Harco’s expert concluded that the second truck “was not an exemplar.” Id. at ¶ 9.
Harco does not, however, produce any photographs or any other piece of evidence showing that
the fuel outlet was on the outside of the tank cover, as Harco’s expert suggests.2
Schwans disputes the allegation that the fuel outlet was outside the tank cover, however.
It has attached the affidavit of its own expert, Victor Van Dyke, who was the Director of
Engineering for Bi-Phase Technologies. In his affidavit, Mr. Van Dyke explains how the fuel
tank system in Schwans truck fleet functions:
1
Schwan’s had previously produced a truck on March 20, 2007, that had only a single fuel tank. Both Harco and
Schwans agree that the March truck was not an exemplar to the original Zaremba truck, which had two fuel tanks.
Mot. Compel ¶ 7.
2
In addition to the expert’s affidavit, Harco attaches numerous exhibits to its brief that are, apparently, service and
maintenance records. Harco does not explain, however, how these records are relevant to the motion to compel.
Harco seems to imply that the original truck had extensive maintenance performed on it, and that Schwans is aware
of that maintenance. But Harco does not explain if or how that maintenance affected the fuel outlet. For example,
did the maintenance on the original truck change its fuel outlet by moving it outside the tank cover? And if so, is
Schwans obligated to alter a functioning truck that does not need such maintenance in order to conform with the
original?
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On a two tank GM 7.4 liter engine (both exemplar and Zaremba vehicle), only
one tank supplies fuel to the engine, the primary tank via a primary fuel line. The
fuel from the secondary tank is used when the primary tank runs low and fuel is
then transferred to the primary tank through a transfer line which is connected to
one of the two fuel inlets (80% fill valve) on the primary tank. A secondary tank
only has one fuel inlet (80% fill valve).
Resp., Ex. A at ¶ 14, ECF No. 113. Mr. Van Dyke further testifies that the primary and
secondary fuel tanks on the second truck and the original truck are identical:
[T]he primary LPDM3 for the Zaremba vehicle (even though it was destroyed in
the fire) and for the exemplar vehicle are identical. The secondary LPDM for the
Zaremba vehicle and the exemplar vehicle are identical. The primary and
secondary LPDM’s utilized for GM 7.4 liter engines did not change in design.
Their componentry remained identical, outlet locations are identical, their manner
of operation is identical.
Id. at ¶ 12.
After explaining the fuel system, Mr. Van Dyke explains why he believes Harco’s expert
reached his determination that the truck that was produced was not an exemplar. First, Mr. Van
Dyke states that Harco’s expert may have “compared the secondary LPDM of the Zaremba
vehicle to the primary LPDM on the exemplar, and they are in fact not identical.” Id. at ¶ 13.
Second, Mr. Van Dyke believes Harco’s expert misidentified a fuel inlet for a fuel outlet:
It is possible [Harco’s expert]’s reference to a “fuel outlet” is actually the fuel
“inlet” (80% fill valve) for the tanks. The primary and secondary tanks each have
a fuel inlet (80% fill valve) approximately the same location at the middle of the
tank. However, the primary tank has an additional, second fuel inlet (80% fill
valve), located adjacent to the LPDM. The fuel transfer line from the secondary
tank connects at the “fuel inlet” located adjacent to the primary tank LPDM. It
appears likely [Harco’s expert] has mistaken the second fuel inlet on the primary
tank next to the LPDM as being a “fuel outlet”, which it is not.
3
Harco’s expert “does not utilize terminology that is completely clear in his affidavit. In it he talks about the ‘tank
cover.’ It is presumed that he is referring to the tank bulkhead or cover plate, which for the Bi-Phase system, that is
known as the LPDM. An LPDM is a patented modified cover plat for an LP fuel tank for a BiPHase LPEFI
system.” Id. at ¶ 10.
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Id. at ¶ 15. Moreover, Mr. Van Dyke states that at no time has a fuel outlet even been placed on
the outside of the tank cover/LPDM. He therefore suggests that Harco’s expert is simply
mistaken:
[Harco’s expert] states in his affidavit that the fuel outlet location on the exemplar
vehicle is different. He is wrong. The fuel outlet location or fuel line connection
point on a Bi-Phase LPEFI system for these particular vehicles is on the LPDM
itself and part of it. That configuration has never changed for either the primary
or secondary LPDM.
Id. at ¶ 16. In further support of Mr. Van Dyke’s testimony, Schwans attached several photos
identifying the corresponding fuel inlets and outlets on the proposed exemplar truck and the
original truck. See Resp., Exs. Q, R, S, T, and U.
In contrast to Schwan’s exhibits detailing the similarities between the proposed exemplar
and the original truck, Harco proffers only its expert’s conclusion that the “fuel outlet . . . was
not separate from the tank cover.” Mot. Compel, Ex. A. at ¶ 8. Moreover, Harco’s expert’s
response affidavit does not dispute Mr. Van Dyke’s assertions:
11.
One of the photographs depicts the outlet of the propane fuel container and
identifies this as 80% fill valve “inlet” for transfer from secondary tank.
This opening in the propane fuel container is required to be equipped with
a manual shut off as described in NFPA 58-2001.
12.
If an exemplar truck with duel propane fuel containers operated by
Schwans Home Service is available in your truck fleet, I would inspect the
propane fuel containers for any additional container openings which are
required to be protected. This inspection is important because it will allow
me to comment on the contents of Mr. Vandyke’s Affidavit.
Reply, Ex. A, ECF No. 117 (emphasis added). Thus, Harco’s expert does not dispute the
allegations in Mr. Van Dyke’s affidavit, but instead requests another look at the rejected truck.
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II
First, it is noteworthy that Harco seeks an order against Schwans entitling it to depose
Ryan Lamb, an employee of Monroe Truck. See Mot. Compel at ¶ 18 (“Documents produced by
Defendant Monroe Truck indicate its employee Ryan Lamb performed the installation.”). Thus,
somewhat perplexingly, although Harco wants to depose a Monroe Truck employee, it is seeking
to compel Scwhans to produce the employee. Nowhere does Harco cite any support for its
request. This Court is without the authority to compel Scwhans to produce another Defendant’s
employee. Indeed, if Harco is seeking to depose a Monroe Truck employee, it would have been
more appropriate to seek discovery from the employer, Monroe Truck.4 Accordingly, Harco’s
motion to compel a deposition from Ryan Lamb is denied.
III
Having addressed Harco’s first discovery request, Harco’s second and third discovery
requests are next in line. Here, there are two discovery rules at issue: Rule 26, governing
discovery between parties, and Rule 45, governing discovery on non-parties. Harco’s motion to
compel seeks production from Schwan’s, a one-time defendant in this case. However, about
three months after Harco filed its motion to compel, it voluntarily agreed to dismiss Schwans
from the case. See Stipulation and Order, ECF No. 119 (dismissing Schwans without prejudice
pursuant to the parties’ stipulation).
Despite dismissing Scwhans from the litigation, Harco did not update or supplement its
motion to compel, nor did it address how the dismissal would affect the pending motion to
compel.
Therefore, a reasonable inference is that Harco does not believe that Schwans’s
dismissal affects the motion to compel.
4
It is noteworthy that Harco has already voluntarily dismissed Monroe Trucks from the lawsuit. See Stipulated
Order of Dismissal, ECF No. 124. Therefore, if Harco does seek discovery from Monroe Trucks concerning its
employee Ryan Lamb, Harco will have to proceed via Federal Rule of Civil Procedure 45.
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However, the Federal Rules of Civil Procedure and the federal courts have clarified that
different rules apply to parties than non-parties:
The discovery rules distinguish between parties to litigation and non-parties.
Some rules permit discovery only from parties. Others permit discovery from
non-parties, but impose additional burdens for obtaining such discovery. . . .
Similarly, any person may be required to produce documents and any property
may be inspected. See Rule 34. If the person is not a party to the litigation, the
party seeking such discovery must utilize a subpoena to compel such discovery.
See Rule 34(c).
Blazek v. Capital Recovery Associates, Inc., 222 F.R.D. 360, 361 (E.D. Wisc. 2004) (quoting In
re Liu, 282 B.R. 904 (Bankr. C.D. Cal. 2002)).
As explained in Blazek, non-parties who were originally parties—for example, a
defaulting defendant—is nonetheless still treated as a non-party. This is because such a nonparty
loses many of the rights of a party, such as the right to receive notice of future
proceedings . . . the right to present evidence on issues . . . and the right to contest
the factual allegations in the complaint. . . . However, once a defendant has made
the decision to default and become, as it were, a non-party, it would not seem fair
to force such defendant to participate in an action to a greater degree than could
be required of other non-parties.
Id. at 361; see also Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1158-59 (9th
Cir. 2010) (adopting the reasoning of Blazek).
Thus, under the circumstances, it appears that the Court may not treat Schwans as a
“party” for the purposes of complying with discovery obligations. And because Schwans is no
longer a party to this action, Harco’s motion to compel will be analyzed under the Federal Rule
governing production of property by non-parties: Rule 45.5
5
Rule 45 governs the request for documents from non-parties, and therefore Harco’s request to depose Ryan Lamb
and for identification of all component pieces are properly covered by this provision. Harco’s request for an
exemplar, however, is governed by Rule 34(c), which governs the production of tangible things from non-parties.
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A
Federal Rule Civil Procedure 45 establishes the rules for discovery directed to individuals
and entities that are not parties to the underlying suit through the use of a subpoena. Fed. R. Civ.
P. 45(b)(1) requires that if a subpoena is served on a non-party and requests the production of
documents, notice must be served on each party before the subpoena is served. Subpoenas
served in accordance with Fed. R. Civ. P. 45 must fall within the scope of discovery set forth in
Fed. R. Civ. P. 26(b)(1).
Thus, by the terms of Rule 45, a party seeking discovery from a non-party must serve that
non-party with a subpoena.
Here, there is no evidence that Harco served a subpoena on
Schwans, nor does Harco make any representations that it did so. Because Harco has not
complied with the first step of seeking discovery from a non-party, its motion to compel will be
denied.
B
For completeness, however, this Court will also examine Harco’s motion to compel
pursuant to Rule 26. Under Federal Rule of Civil Procedure 26(b)(1), discovery is permitted of
“any nonprivileged matter that is relevant to any party’s claim or defense.” Federal Rule of Civil
Procedure 26(b) is to be liberally interpreted to permit wide-ranging discovery of information,
even if that information is not ultimately admitted at trial. See also Fed. R. Civ. P. 26(b)(1)
(“[r]elevant information need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.”). To determine the proper scope of
discovery, a district court should balance a party’s “right to discovery with the need to prevent
‘fishing expeditions.’” Conti v. Am. Axle & Mfg., 326 F. App’x 900, at *907 (6th Cir. May 22,
However, Rule 34(c) explicitly incorporates Rule 45, and therefore this Court need only address Rule 45 when
addressing Harco’s motion to compel.
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2009 (quoting Bush v. Dictaphone Corp., 161 F.3d 363, 367 (6th Cir. 1998)). “This approach
does not mean oceanic fishing expeditions will be permitted. Much of discovery is a fishing
expedition of sorts, but the Federal Rules of Civil Procedure allow the Courts to determine the
pond, the type of lure, and how long the parties can leave their lines in the water.” Myers v.
Prudential Ins. Co. of America, 581 F. Supp. 2d 904, 913 (E.D. Tenn. 2008).
But even applying the standard set forth in Rule 26,6 Harco’s motion to compel should
and will be denied. First, as noted above, Rule 26 governs discovery from parties only. It does
not imbue the Court with power to compel discovery from non-parties. Although Schwans was a
defendant when Harco filed its motion, Harco has since voluntarily dismissed Schwan’s from the
litigation. See Blazek v. Capital Recovery Associates, Inc., 222 F.R.D. 360, 360-61 (E.D. Wisc.
2004) (concluding that plaintiff could not request discovery pursuant to Rule 26 from a
defendant against whom judgment had already been entered). Accordingly, Harco’s motion to
compel pursuant to Rule 26 will be denied because the Court is without the authority to enforce
it.
IV
On October 6, 2014, Harco also filed a motion to extend the dispositive motion and
motion in limine cutoff dates. See Mot. Extend, ECF No. 120. The Court had previously set a
deadline for Defendants to file motions regarding damages on or before October 10, 2014. Order
Lifting Stay, ECF No. 109. Although Harco was not subject to this filing deadline, it nonetheless
requested an extension, contending that “it is in the best interest of all to adjourn the dispositive
Motion date to a time to be set in the future and after the matter of the exemplar is concluded.”
6
Harco’s motion to compel Schwan’s to produce an exemplar was filed before these two parties agreed to a
voluntary dismissal. However, Harco did not supplement its original motion with information on whether the
dismissal had any effect on the outstanding motion. Because Harco has not complied with the requirements of Rule
45, it is reasonable that it would want this Court to analyze his motion under Rule 26.
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Mot. Extend ¶ 3.
Defendants Bi-Phase Technologies, Sleegers Engineering, and Sleegers
Machining and Fabricating all opposed Harco’s motion to extend. Bi-Phase Resp., ECF No.
121; Sleegers Resp., ECF No. 125.
Because Harco’s motion to produce an exemplar will be denied, the “matter of the
exemplar is concluded.” Moreover, Defendants have already filed their motions challenging
Harco’s damages calculations. See Mot. in Limine, ECF No. 122; Notice of Joinder, ECF No.
123. Thus, an extension of the motion-filing dates is not warranted.
V
As explained above, the Court concludes that oral argument is not necessary to the
disposition of Harco’s motion to compel and will not aid in the resolution of this matter.
Therefore, the Court will cancel the hearing scheduled for November 5, 2014 at 2:00 p.m. See
E.D. Mich. L.R. 7.1(f)(2).
Accordingly, it is ORDERED that Plaintiff Harco’s Motion to Compel (ECF No. 98) is
DENIED.
It is further ORDERED that Plaintiff Harco is DIRECTED to serve Schwans Food
Company with a copy of this Order within fourteen days of entry of this Order.
It is further ORDERED that the November 5, 2014 hearing is CANCELLED.
It is further ORDERED that Plaintiff Harco’s Motion to Extend (ECF No. 120) is
DENIED.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: October 22, 2014
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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on October 22, 2014.
s/Tracy A. Jacobs
TRACY A. JACOBS
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