Johnston v. Dow Employees' Pension Plan et al

Filing 161

ORDER Granting Permission to Amend Motion to Certify Class, Accepting 123 Amended Motion as Filed, Denying 29 Motion to Certify Class as Moot, Granting 80 Motion to Amend Response to Motion to Certify, Directing Filing, and Denying 157 Motion for Status Conference as Moot. (Defendants' Amended Response due by 4/1/2016 and Plaintiff's Amended Reply due by 4/8/2016) Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ROBERT JOHNSTON, individually and on behalf
of a class of all other persons similarly situated,
Plaintiff,
v.

Case No. 14-cv-10427
Honorable Thomas L. Ludington

DOW EMPLOYEES’ PENSION PLAN and
DOW CHEMICAL COMPANY RETIREMENT
BOARD,
Defendants.
_______________________________________/
ORDER GRANTING PERMISSION TO AMEND MOTION TO CERTIFY CLASS,
ACCEPTING AMENDED MOTION AS FILED, DENYING MOTION TO CERTIFY AS
MOOT, GRANTING MOTION TO AMEND RESPONSE TO MOTION TO CERTIFY,
DIRECTING FILING, AND DENYING MOTION FOR STATUS CONFERENCE AS
MOOT
On June 30, 2015, Plaintiff filed a motion to certify class. ECF No. 29. Since that motion
has been filed, Plaintiff’s legal representation has changed. Accordingly, on December 4, 2015,
Plaintiff filed a motion to amend his motion for class certification. He seeks to amend his request
for appointment of class counsel to reflect the current status of his legal counsel. ECF No. 123.
Defendants do not object to the amendment.
Defendants have moved to amend their response to Plaintiff’s motion to certify. They
seek to amend certain factual information in their brief and amend an exhibit to their response—
a chart “summarizing information relevant to the pension benefit calculations for Johnston and
members of the putative class.” Defs.’ Mot. Amend 1, ECF No. 80. Plaintiff opposes
Defendants’ request because, he argues, the exhibit is an improper expansion of Defendants’
argument since it is an impermissible summary. Further, Plaintiff claims that Defendants had the

new information in their possession before they filed their response, making their amendment
untimely.
Defendants’ motion will be granted. First, Plaintiff did not move to strike the exhibit
Defendants seek to amend at the time it was initially filed. He has only expressed displeasure
with the exhibit’s propriety in response to Defendants’ motion to amend. Parties cannot seek
affirmative relief in response briefs. See E.D. Mich. Electronic Filing Policies and Procedures
R5(e). Thus, to the extent he objects to the document as improper under Federal Rule of
Evidence 1006, he has missed his opportunity to do so.
But even if his Rule 1006 objection was entertained, it would be meritless. The document
is properly considered a pedagogical device that falls, for purposes of motion practice, outside
the purview of Rule 1006. See United States v. Bray, 139 F.3d 1104, 1111 (6th Cir. 1998). See
also United States v. Milkiewicz, 470 F.3d 390, 398 (1st Cir. 2006) (adopting pedagogical device
holding from Bray and noting trial judges’ broad discretion to admit summary exhibits).
Defendants will be directed to file their amended response brief. Plaintiff will be permitted to file
an amended reply.
Lastly, Plaintiff moved for a status conference in advance of trial. In the Court’s most
recent order, the final pretrial conference and trial dates were cancelled pending resolution of
outstanding dispositive motions. Plaintiff’s motion is now moot and will be denied as such. He is
free to seek such a conference in the future if necessary and trial is approaching.
Accordingly, it is ORDERED that Plaintiff Robert Johnston is granted permission to
amend his motion to certify class and the amended motion to certify class, ECF No. 123, is
ACCEPTED as filed.

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It is further ORDERED that Plaintiff Robert Johnston’s motion to certify class, ECF
No. 29, is DENIED as moot in light of his amended motion to certify, ECF No. 123.
It is further ORDERED that Defendants’ motion to amend their response to Plaintiff’s
motion to certify, ECF No. 80, is GRANTED.
It is further ORDERED that Defendants are DIRECTED to file their amended response
brief on the docket on or before April 1, 2016.
It is further ORDERED that Plaintiff Robert Johnston is DIRECTED to refile any
amended reply brief on or before April 8, 2016.
It is further ORDERED that Plaintiff Robert Johnston’s motion requesting status
conference, ECF No. 157, is DENIED as moot.
Dated: March 23, 2016

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
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 March 23, 2016.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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