Weirton Association v. Woodward Detroit CVS, LLC
Filing
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ORDER granting 21 Defendant's Motion to Compel. Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WEIRTON ASSOCIATION,
Plaintiff/Counter-Defendant,
Case No. 11-14956
v.
WOODWARD DETROIT CVS, LLC,
Defendant/Counter-Plaintiff.
/
ORDER GRANTING DEFENDANT’S MOTION TO COMPEL
Defendant operated a drug store in Plaintiff’s building but terminated the lease in
March, 2011. Plaintiff sues, alleging that Defendant breached the lease by leaving;
Defendant counterclaims, alleging that Plaintiff breached the lease by failing to fix a
leaky roof. Defendant moves to compel Plaintiff to allow noninvasive testing of the roof
and the building. Plaintiff responds that testing today proves nothing useful about the
building as it stood before and when Defendant left.
The success or failure of the counterclaim depends on the state of the building
and its roof in early 2011. Although about twenty months have passed since then,
Defendant seeks to inspect the same building that it occupied. So far as the record
shows, the building has remained both vacant and untouched since Defendant left. The
tests Defendant asks to conduct seem undoubtedly “relevant to the subject matter
involved in the action.” Fed.R.Civ.P. 26(b)(1).
Plaintiff vigorously opposes the proposed testing. But Plaintiff never explains
how its argument that testing now proves too little undermines the testing’s relevance
rather than merely the testing’s persuasiveness. If necessary, Plaintiff may of course
attempt to undermine the results of each test during a cross-examination at trial. In any
case, Plaintiff’s attack on the requested testing fails. Plaintiff provides no technical
analysis showing that testing now cannot prove anything; rather, Plaintiff stridently
repeats its main conclusion while providing no factual support.1
Plaintiff claims Defendant acknowledged in a February, 2011, email that the roof
was in good condition. The email, however, appears plucked from a longer chain, and
the lack of context renders the email’s meaning obscure. For example, the email said
that the building appeared “suitable for []occupancy,” but the email also requested more
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A few examples illustrate the tone: “Any . . . inspecting and testing [of] the
proposed areas today would not lead to any evidence demonstrating whether [] the
repairs worked” (Resp. p.1, Dkt. # 22); “Any inspection and testing conducted today . . .
would be thoroughly misleading, prejudicial and confusing” (p.1); “The condition of the
property today [] has absolutely no relevance” (p.8); “No . . . inspecting and testing of
the leased premises . . . conducted now will be logically or legally relevant” (p. 8); “[No]
evidence gathered [could] lead to the discovery of any admissible evidence” (p.8); “Any
testing results today . . . cannot be fairly representative” (p.10); “No information
gathered today . . . would show [the condition of] the roof [at] year end 2010” (p.10);
“no results yielded . . . would be admissible to show the state [] of the premises at the
time” (p.11); “any . . . inspecting and testing of the leased premises today is not logically
or legally relevant” (p.11); “no information gathered . . . would lead to admissible
evidence” (p.11); “Any testing results garnered from inspection and testing . . . would
not have any probative tendency” (p.11); “any findings from an inspection and testing
today are incapable of representing or showing the condition of the areas at [the time]”
(p.11); “no testing will have any bearing on the overriding issue” (pp.11-12); “any
inspection and testing would be a waste of time and resources” (p.12); “any evidence
gathered as a result of inspection and testing today would be unduly prejudicial” (p.12);
“Any results obtained from a new inspection and testing of the leased premises
. . . today is . . . irrelevant” (p.13); “CVS is attempting to go on a fishing expedition
. . . with no logical connection or purpose other than to obtain information that is
irrelevant” (p.15); “No testing results today will answer . . . whether [the roof was fit at
the time]” (p.15); “The Rule 34 request proffered by Defendant . . . can only produce
results that are misleading and confusing [about] the state of the premises at the time”
(p.15); “CVS’s request falls outside the scope of permissible discovery” (p.15) (bold,
italics, and bolded italics always in original).
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testing to determine whether “the roof is now moisture-tight.” (Dkt. # 22 Ex. E.)
Moreover, Defendant could find the roof acceptable in February, 2011, and still discover
problems before the March 2011 lease termination.
Plaintiff argues that Defendant should have conducted tests before leaving the
building. “Up until [Defendant] wrongfully terminated its lease,” Plaintiff writes,
“[Defendant’s] own experts had unfettered access to the leased premises.” (Resp. 9
(emphasis in original).) Obviously, whether Defendant “wrongfully” terminated the lease
is the issue in dispute; Defendant cannot assume Plaintiff’s liability and then foist on
Plaintiff the duty to conduct tests in anticipation of getting sued. Plaintiff argues also
that Defendant should have asked to conduct the tests earlier in the litigation. When
Plaintiff requested testing, however, the discovery deadline was more than seven weeks
away. (Dkt. # 21 Ex. E; Dkt. # 19.)
Defendant’s request to conduct noninvasive testing was reasonable; Plaintiff’s
forcing a motion to compel and a judicial order was not. Accordingly,
IT IS ORDERED that Plaintiff’s motion to compel [Dkt. # 21] is GRANTED.
Plaintiff must allow Defendant to conduct noninvasive testing of the entire building (the
former CVS; the former Farmer Jack; everything) beginning on a day proposed by the
Plaintiff and agreed to by each party but in no event later than December 3, 2012. A
party may move to briefly extend the discovery deadline as necessary to complete the
testing.
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IT IS FURTHER ORDERED that by November 16, 2012, Defendant may submit
a motion in accord with Federal Rule of Civil Procedure 37(a)(5)(A).
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: November 2, 2012
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, November 2, 2012, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
(313) 234-5522
S:\Cleland\JUDGE'S DESK\C2 ORDERS\11-14956.WEIRTON.MotionCompel.ckb.wpd
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