Marks One Car Rental, Inc. v. Auto Club Group Insurance Company et al

Filing 285

MEMORANDUM AND ORDER GRANTING FARMERS' MOTION FOR SUMMARY JUDGMENT [DOC. 273] AND DISMISSING CASE. Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARKS ONE CAR RENTAL, INC., MARKS
ONE LLC, d/b/a/ MARKS ONE COLLISION,
and MAHER WAAD,
Plaintiffs,
vs.

Case No. 13-14610

FARMERS INSURANCE EXCHANGE
CITIZENS INSURANCE COMPANY OF
AMERICA,

HON. AVERN COHN

Defendants.
___________________________________________/
MEMORANDUM AND ORDER GRANTING
FARMERS’ MOTION FOR SUMMARY JUDGMENT (Doc. 273)
AND DISMISSING CASE
I. Introduction
This is a business tort case. Marks One Car Rental, Inc., Marks One, LLC,
Marks One Collision (collectively Marks One) and Maher Waad (Waad), collectively
“plaintiffs,” are suing Farmers Insurance Exchange (Farmers).1 Plaintiffs make the
following claims:
Count I - Tortious Interference with Business Expectancy
Count II - Defamation
1

Plaintiffs initially sued several insurance and car rental companies. Following
motion practice and stipulations, only Farmers remains as a defendant. See Doc. 70
(Enterprise Leasing), Doc. 71 (Hertz Corporation), Doc. 87 (Titan Insurance, Allied
Insurance, Nationwide Insurance), Doc. 88 (HelpPoint Claims Services), Doc. 141
(Bristol West Insurance, Foremost Insurance, 21st Century Insurance), Doc. 234 (Auto
Club Group), Doc. 248 (Geico Insurance), and Doc. 262 (Citizens Insurance).

Count IV - Civil Conspiracy
Count V - Unlawful Discrimination under 42 U.S.C. § 1981
Broadly stated, plaintiffs allege that Farmers has defamed plaintiffs to customers
and potential customers during fraud investigations into plaintiffs’ repair and rental
activity. Plaintiffs contend the investigations were unfounded and caused a loss of
business. They further contend that certain employees of Farmers used racial slurs and
have a racial bias against Waad, an Arab-American.
Before the Court is Farmers’ motion for summary judgment. For the reasons that
follow, the motion will be granted.
II. Background
A. Plaintiffs’ Claims
Plaintiffs allege that Farmers tortiously interfered with the contracts of four
customers and made defamatory statements to them concerning Plaintiffs’ business.
(Doc. 91, Second Amended Complaint at ¶ 40) Plaintiffs also allege that Farmers
discriminated against them based on race by cancelling a purported “direct
bill” agreement concerning the manner in which payments were made for rental cars.
Id. at ¶ 77. Finally, plaintiffs allege that Farmers engaged in a conspiracy with other
defendants – although all of these other defendants have since been dismissed from
this case. Id. at ¶ 68.
More specifically, Count I (Tortious Interference) and Count II (Defamation)
identify four customers whose purported ongoing and prospective business
relationships with plaintiffs were interfered with by defamatory and false statements
made to them by Farmers’ agents regarding the quality of services performed by Marks
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One (“the Disputed Statements”). In support, plaintiffs rely upon the affidavits of four
customers which are attached to the Second Amended Complaint: Sherell Jones,
Melody Garvin, Catherine Jackson, and Linda Green. As to Garvin and Jones, the
Disputed Statements also concerned allegations of forgery surrounding the
endorsement of checks. The four customers were deposed. Their deposition testimony
will be discussed in further detail below.
B. Relevant Procedural History
Although filed in 2013, the case dragged on due for several reasons, including
the filing of amended complaints, motions to dismiss filed by the various defendants,
discovery disputes, a motion to disqualify plaintiffs’ first counsel, and plaintiff’s multiple
changes in counsel.2 About a year after the case was filed, the Court ordered plaintiffs
to “file a detailed account of their damages claim” (Doc. 141, p. 2). Plaintiffs
subsequently filed (Doc. 144). Plaintiffs’ statement (the “Account of Damages”)
describes the compensatory damages, direct and consequential, that the plaintiffs seek
based on the allegations and claims set forth in the Second Amended Complaint. In
short, plaintiffs seek millions in damages. Although only Farmers remains a defendant,
plaintiffs maintain damages in the millions is still warranted.
The Court also made the observation in ruling on certain defendants’ motions to
dismiss that “important for resolving the motions is the fact that the Court must accept
the statements in the Second Amended Compliant and exhibits as true. Whether the
statements will hold up after discovery is another matter.” (Doc. 29, p. 3.).

2

Current counsel is plaintiffs’ thirteenth (13) attorney.
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The record is now more fulsome. To date, seven current and former employees
of Farmers have been deposed, four employees of plaintiffs and 21 other individuals
have been deposed.3 These depositions include persons with personal knowledge of
the asserted acts of wrongdoing by Farmers pled in the Second Amended Complaint
and plaintiffs’ 14 depositions.
C. Farmers’ Motion
Farmers seeks summary judgment on the claims against it based on the
following reasons:
1.

the lack of proof of a factual causal connection between the Disputed
Statements and the impairment of plaintiffs’ business prospects as well as
the damages described by plaintiffs in their Account of Damages;

2.

the lack of proof of re-publication of the Disputed Statements;

3.

the Disputed Statements, even if made, do not constitute defamation per
se;

4.

there is undisputed evidence of fraudulent activities by plaintiffs;

5.

the lack of evidence of any contract for direct billing between plaintiffs and
Farmers and the fact that plaintiffs are only incidental beneficiaries of
Farmers’ contracts with their policy holders and that no acts by Farmers
prohibits those policy holders from entering into contracts with Plaintiffs, all
of which bars Plaintiffs standing to assert (affirmative defense #3) any
claims under 42 U.S.C. Section 1981 for discrimination; and

6.

The Court’s ruling in a related case is res judicata as to plaintiffs’ claims in
this case
III. Summary Judgment

“The court shall grant summary judgment if the movant shows that there is no

3

This number does not include depositions taken by defendants who are no
longer in the case.
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genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A moving party may meet that burden “by
'showing'-that is, pointing out to the district court-that there is an absence of evidence to
support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). Rule 56 provides that:
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits, or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of
a genuine dispute, or that an adverse party cannot produce admissible evidence
to support a fact.
Fed. R. Civ. P. 56(c)(1).
The Court must decide “whether the evidence presents a sufficient disagreement
to require submission to a [trier of fact] or whether it is so one-sided that one party must
prevail as a matter of law.” In re Dollar Corp., 25 F.3d 1320, 1323 (6th Cir. 1994)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). In so doing, the
Court “must view the evidence in the light most favorable to the non-moving party.”
Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 101 (6th Cir.
1995).
IV. Analysis
Farmers’ arguments are addressed below within the confines of plaintiffs’ claims.
A. Tortious Interference
The elements of tortious interference with a business relationship or expectancy
are:
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(1) the existence of a valid business relationship or expectancy that is not
necessarily predicated on an enforceable contract, (2) knowledge of the
relationship or expectancy on the part of the defendant interferer, (3) an
intentional interference by the defendant inducing or causing a breach or
termination of the relationship or expectancy, and (4) resulting damage to the
party whose relationship or expectancy was disrupted.
Health Call v. Atrium Home & Health Care Servs., 268 Mich. App. 83, 90 (2005).
A valid business expectancy is defined as one that “must be a reasonable likelihood
or probability, not mere wishful thinking.” Trepel v. Pontiac Osteopathic Hospital, 135
Mich. App. 361, 377 (1984). A plaintiff must identify the relationship supposedly
interfered with and the acts that did so.
Here, plaintiffs have identified four customers. Plaintiffs must show that Farmers’
“conduct caused [the four customers] to terminate or disrupt [their] business relationship
or expectancy [with Plaintiffs]” and that plaintiffs were “damaged as a result” of this
conduct.
Farmers says that plaintiffs cannot prevail on their tortious interference claim
because the undisputed evidence through the deposition testimony of the four
customers shows that the Disputed Statements because none of the customers severed
their relationships or potential opportunities with plaintiffs based on those statements
and actions. In other words, plaintiffs cannot show that there was any interference as a
result of the Disputed Statements. The Court agrees.
As to the four customers, Sherell Jones testified that she continues to rent
vehicles from plaintiffs “maybe four times a year when I’m going out of town.” (Farmers
Ex. A, Jones Dep. 61-62.) Linda Green testified that if she has any vehicle damage in
the future, she will take her car to plaintiffs to be repaired. (Ex. D, Green Dep. 25.) •
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Melody Garvin testified that, even after the Farmers inspection, she felt that “My car is
fine. They did a good job. I’m fine.” (Ex. B, Garvin Dep. 71-72.) As to Jones and
Green, they admitted that their business relationships with plaintiffs were not impaired
by the Disputed Statements. As to damages, none of these customers identified any
instance that “but for” the Disputed Statements they would have sent business to
plaintiffs and chose not to.
Garvin, however, testified that she would not go to plaintiffs’ businesses again
because of what she saw on television concerning a later police raid. As explained
below, plaintiffs have no evidence connecting the police raid with any statements made
by Farmers.
Catherine Jackson testified that she would not return to plaintiffs’ businesses,
although this was not because of any actions or statements by Farmers, but instead
because her boyfriend subsequently had a vehicle repaired there, and “the vehicle is
falling apart now.” (Ex. C, C. Jackson Dep. 27-28.) Jackson’s decision to stop taking
her vehicles to plaintiffs’ businesses was not caused by any actions of Farmers – it was
caused by her dissatisfaction with plaintiffs’ work on a different vehicle at a different
time. “‘An intervening cause breaks the chain of causation and constitutes a
superseding cause which relieves the original actor of liability, unless it is found that the
intervening act was reasonably foreseeable.’” Black v. Shafer, 499 Mich. 950, 951
(2016). “An intervening cause is considered reasonably foreseeable
when the defendant’s negligence ‘enhances the likelihood that the intervening
cause will occur.” Rupert v. Daggett, 695 F.3d 417, 426 (6th Cir. 2012). Here, a
superseding cause totally independent from the Disputed Statements led to plaintiffs’
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loss of Jackson as a future customer. Accordingly, as to Jackson, there also is no
causal connection between the Disputed Statements and any impairment of business
relationships or damages incurred by plaintiffs.
Overall, plaintiffs have not established a genuine issue of material fact to support
their tortious interference claim.
B. Defamation
Like a claim for tortious interference, a claim of libel and slander also include
proof that “as a result of the [libel/slander] statement, the Plaintiff suffered some
damage.” M Civ JI 118.05 Libel, Slander.
To prove a claim of defamation, a plaintiff must show the following:
(1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged
communication to a third party, (3) fault amounting at least to negligence on the
part of the publisher, and (4) either actionability of the statement irrespective of
special harm (defamation per se) or the existence of special harm caused by
publication.
Lakin v. Rund, 318 Mich. App. 127, 133 (2016) (internal citation omitted). Farmers says
that like the tortious interference claim, plaintiffs did not suffer any damages as a result
of the Disputed Statements. The Court agrees.
1. Four Customers
The factual basis for the tortious interference claim is the same as plaintiffs’
defamation claim in Count II. Two of the individual customers indicated that they
intended to continue using plaintiffs’ businesses. (Ex. A, Jones Dep. 61-62; Ex. D,
Green Dep. 25.) One indicated that she would no longer use them because of poor
work on her boyfriend’s vehicle, and not due to anything said by any representative of
Farmers. (Ex. C, C. Jackson Dep. 27-28.) The final customer indicated that she would
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not use Plaintiffs’ businesses not because of anything said by Farmers, but because
she saw a news report about a police raid of plaintiffs’ businesses. (Ex. B, Garvin Dep.
77-78.)
Under Michigan law, “in actions based on libel or slander the plaintiff is entitled to
recover only for the actual damages which he or she has suffered in respect to his or
her property, business, trade, profession, occupation, or feelings.” M.C.L. §
600.2911(2)(a). Because the Disputed Statements did not cause any actual damages
to plaintiffs based on lost business from the four customers, Farmers also is entitled to
summary judgment in its favor on Plaintiffs’ defamation claim.
2. Other Business Damages
Plaintiffs’ attempt to expand their alleged damages beyond the four customers to
include “other business damages” fails. There is no admissible evidence causally
connecting the Disputed Statements to either damages caused to plaintiffs’ general
business (See “Compensatory Damages,” Doc. 144, pp. 8-11) or to the purported loss
of an opportunity to establish a rental facility near Metro Airport working with the Airport
Authority to rent cars to travelers and others (see “DTW Airport Expansion Opportunity,”
Docket Entry 144, pp. 12-19). The record is simply devoid of any evidence that the
Disputed Statements were re-published by them to any other person. The Disputed
Statements were never otherwise made public except through the filing of plaintiffs’
Second Amended Complaint on May 28, 2014. The Court has previously observed that
a plaintiff must identify the statements that constitute a republication of defamatory
statements and cannot rely on the “rumor mill” or similar speculation to prove that
re-publication occurred. Whiting v. Allstate Ins. Co., No. 08-12991, 2010 U.S. Dist.
9

LEXIS 23552, at *18 (E.D. Mich. Mar. 15, 2010).
Here, there is no evidence of republication of the Disputed Statements by
anyone, much less Farmers, to either the Airport Authority or the general public.
Accordingly, plaintiffs’ requests for business related damages based on its loss of
revenue and loss of the purported opportunity with the Airport Authority to open a new
rental business nearby Metro Airport cannot be causally connected through any
admissible evidence to the Disputed Statements. As such, plaintiffs cannot prevail on a
claim for defamation related to these other alleged damages.
Further, plaintiffs fare no better in their contention that they have established
damages based on the allegation that Farmers or their agents “tipped” Channel 4
regarding an upcoming “raid” on the businesses by Macomb County law enforcement.
There is no evidence to supports this allegation. Indeed, Farmers employee Tom Berry
testified that he did no such thing. (Ex. O, Berry Dep. 202) and Maher Waad testified he
had no evidence that anyone from Farmers informed Channel 4. (Ex. M, Waad Dep.
221-223)
3. Defamation Per Se
Plaintiffs also contend that damages aside, Farmers is not entitled to summary
judgment due because the Disputed Statements at issue were defamation per se and
entitle Waad to damages for harm to his “feelings.” Not so. Under Michigan law, only
“actual damages” may be recovered for statements concerning a person’s business,
trade, profession, or occupation. Cofessco Fire Protection, LLC v. Steele, Nos. 290959,
292357, 2010 Mich. App. LEXIS 1896 at *7-8 (Oct. 7, 2010) (statements concerning a
business are not defamation per se).
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In addition, to the extent that plaintiffs characterize the Disputed Statements as
accusations of criminal conduct and defamation per se as to Waad individually, the
Disputed Statements do not rise to that level as a matter of law. “(E)xaggerated
language used to express opinion, such as ‘blackmailer,’ ‘traitor’ or ‘crook,’ [and] does
not become actionable merely because it could be taken out of context as accusing
someone of a crime.” Kevorkian v. AMA, 237 Mich. App. 1, 8 (Mich. App. 1999); see
also Ghanam v. Does, 303 Mich. App. 522, 546 (Mich. App. 2014) (“Terms such as
‘blackmailer,’ ‘traitor,’ ‘crook,’ ‘steal,’ and ‘criminal activities’ must be read in context to
determine whether they are merely exaggerations of the type often used in public
commentary.”).
4. Plaintiffs’ Arguments
Plaintiffs assert that Farmers accused plaintiffs of criminal forgery with respect to
the checks of the four customers. Plaintiffs contend that the customers gave plaintiffs
permission to sign joint checks. However, the customers testified at their depositions
that they told Farmers that they (the customers) had not given plaintiffs permission to
sign their names to joint checks (Farmers’ Motion Ex. A, S. Jones Dep. 28-31; Ex. B,
Garvin Dep. 22-28.) Customer confusion and error when they confirmed to Farmers
that they had not given plaintiffs permission to sign checks does not mean that Farmers
was being defamatory. Thus, this argument does not save plaintiffs’ defamation claim.
Plaintiffs also attempt to create an issue of fact by relying upon the four customer
affidavits from 2014 which were attached to the Second Amended Complaint. As
Farmers’ notes, the Catherine Jackson and Linda Green affidavits say nothing about
Farmers accusing plaintiffs of forgery. While Sherell Jones’ and Melody Garvin’s
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affidavits state that a Farmers representative told them that their signature had been
forged (Plaintiffs Ex. C, Jones Aff. ¶ 8; Ec. B, Garvin Aff. ¶ 6), they both contradicted
this assertion in their subsequent depositions. (Farmers’ Motion Ex. A, S. Jones Dep.
28-31; Ex. B, Garvin Dep. 22-28). Plaintiffs “cannot thwart the purpose of Rule 56 by
creating issues of fact through affidavits that contradict their own depositions,” even
when those affidavits pre-date the depositions. See Darnell v. Target Stores, 16 F.3d
174, 177 (7th Cir. 1994).
Overall, plaintiffs have not put forth sufficient evidence to make out a defamation
claim for trial. No reasonable juror could find for plaintiffs based on the record.4
5. Truth as a Defense
C. 42 U.S.C. § 1981
Section 1981 protects against racial discrimination in the making and
enforcement of contracts. See Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 476,
(2006) (“Section 1981offers relief when racial discrimination blocks the creation of a
contractual relationship, as well as when racial discrimination impairs an existing
contractual relationship.”) To establish a claim under Section 1981, a plaintiff must
allege facts in support of the following elements: (1) plaintiff is a member of a racial
4

Farmers also contends that plaintiffs’ defamation claim should be separately
dismissed because the Disputed Statements, which all concern the quality and honesty
of plaintiffs’ business practices and repairs performed on vehicles, are true. Farmers
says facts uncovered by Farmers’ investigation of these practices demonstrates that
plaintiffs act fraudulently in the conduct of their business. “Truth is an absolute defense
to a defamation claim.” Wilson v. Sparrow Health Sys., 290 Mich. App. 149, 155 (2010).
Farmers says that its investigation proves that plaintiffs routinely failed to perform the
repairs which they agreed to repair, and repaired parts they agreed to replace, and left
damaged parts on vehicles despite being paid to replace them. The Court declines to
address this argument because plaintiffs’ claim fails for the reasons discussed supra.
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minority, (2) defendant intended to discriminate on the basis of race, and (3) the
discrimination concerned one or more of the activities enumerated in the statute (i.e.,
make and enforce contracts, sue and be sued, give evidence, etc.). Johnson v. Harrell,
142 F.3d 434, 1998 WL 57356 (6th Cir.1998) (citing Morris v. Office Max, Inc., 89 F.3d
411, 413 (7th Cir.1996).
Here, plaintiffs essentially contend that Farmers impaired its ability to contract
with potential customers. Plaintiff must first establish that a contract exists. See Cook
v. The Advertiser Co., 458 F.2d 1119, 1122 (5th Cir. 1972) (no claim under § 1981 for
termination of contract when there was no contract in the first instance); Black Agents &
Brokers Agency, Inc. v. Ward, 409 F.3d 833, 837 (7th Cir. 2005) (“To begin with, it is
difficult to understand how the [defendants] could have intended to discriminate against
[plaintiff] in the making and termination of a contract when the two were never parties to
a binding agreement, nor were they trying to enter into an agreement.”).
1. Direct Billing
Plaintiffs’ claim is based on the following allegations: that Marks One Car Rental
was a participant in a “Direct Billing Program” with Farmers, and that Farmers
terminated Marks One Car Rental from that contract based on the race of its principal,
Maher Waad. (Doc. 91, Second Amended Complaint. ¶¶ 77-79; Docket Entry 144,
Account of Damages pp.19-20.).
Farmers says that this claim fails because there is no proof that Farmers ever
entered into a “direct billing program” with any of the plaintiffs and there is no evidence
of any contract. The Court agrees. Waad conceded at deposition that there was no
such contract – the claims were based solely upon his belief as to the contents of
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contracts between Farmers and its insureds. (Ex. M, Waad Dep. 99.) Because there is
no evidence of a “direct bill” contract between Farmers and plaintiffs, Farmers could not
have “terminated” any such contract. Waad’s speculative testimony is insufficient.
Summary judgment is therefore appropriate.
Farmers also says that to the extent plaintiffs argue that not having a direct billing
agreement with Farmers is in and of itself a violation of section 1981, such argument
must fail because plaintiffs were free to contract with Farmers’ customers even without
a direct billing agreement. The Court agrees. Here, having a “direct billing” relationship
with Farmers is not a prerequisite for Marks One to do business with Farmers’ insureds
and, while it might make Marks One “less attractive” to some insureds, refusing to enter
into such a relationship does not preclude Marks One from renting cars to those
insureds. As a result, plaintiffs’ alleged wrongful conduct does not satisfy the necessary
elements for plaintiffs to make out a viable claim under 42 U.S.C. §1981. See Harris v.
Allstate Ins. Co., 300 F.3d 1183 (10th Cir. 2002)
2. Farmers’ Contracts with Insureds
Farmers also says that plaintiffs have no claim under section 1981 arising out of
any contracts Farmers had with its insureds. While Marks One benefits by performance
of the insured’s contract with Farmers if the insured decides to rent a car from Marks
One, it is only as an incidental beneficiary. Incidental beneficiaries, however, lack
standing to bring claims for breach of contract. See, e.g. Kisiel v. Holz, 272 Mich. App.
168, 170 (2006) (“Only intended, rather than incidental, third-party beneficiaries may
sue when a contractual promise in their favor has been breached”). Thus, incidental
beneficiaries, such as plaintiffs, also do not have standing to assert a section 1981
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claims as a matter of law. See Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 478
(2006) (Section 1981 cannot be enforced by third party beneficiaries, but only by those
individuals whose rights to make and enforce a contract were impaired).
3. Plaintiffs’ Arguments
Plaintiffs “concede there was no written contract regarding billing procedures” but
contend that “whether there was a billing arrangement is a question of fact.” This
argument does not carry the day. The only “billing arrangement” between the parties is
that plaintiffs were third party beneficiaries to insurance policies between Farmers and
its insureds. Farmers insureds remain free to obtain a rental from any rental shop they
would like to use.
Plaintiffs also attempt to improperly amend their pleadings to increase the scope
of their § 1981 claim by suggesting it encompasses the use of “racial slurs.” Plaintiffs,
however, offer no evidentiary support or otherwise show how the uttering of racist
language creates a cause of action under §1981.
D. Civil Conspiracy
“A civil conspiracy is a combination of two or more persons, by some concerted
action, to accomplish a criminal or unlawful purpose, or to accomplish a lawful purpose
by criminal or unlawful means.” Admiral Ins. Co. v. Columbia Cas. Ins. Co, 194 Mich.
App. 300, 313 (1992). “[A] claim for civil conspiracy may not exist in the air; rather, it is
necessary to prove a separate, actionable tort.” Advocacy Org. for Patients & Providers
v .Auto Club Ins. Ass’n, 257 Mich. App. 365, 384 (2003) (internal quotations omitted).
Here, Farmers is entitled to summary judgment on plaintiffs’ conspiracy claim for
two reasons. First, “conspiracy” by itself, is not a cause of action but is rather a method
15

to apportion liability among multiple defendants for the underlying tortious acts. See
Roche v. Blair, 305 Mich. 608, 613-614 (1943). Second, because Farmers is the only
defendant, there is no one with whom it can conspire and there is no evidence that
Farmers conspired with any of its former co-defendants.
E. Res Judicata Due and Claim Splitting
In light of the above, the Court declines to address Farmers’ argument that all of
plaintiffs’ claims should separately be dismissed under the doctrine of res judicata due
to Plaintiffs’ decision to engage in improper claim splitting by filing the separate case of
Maher Waad, Marks One Car Rental, and Marks One Collision v. Farmers Insurance
Exchange, Allen Keller, et al, Case No. 16-13362.
F. Plaintiffs’ Arguments Not Addressed Above
Plaintiffs suggest that they need additional discovery to make out their claims
beyond what is in the record. Plaintiffs, however, have not following the requirements of
Fed. R. Civ. P. 56(d) or making the required showing of need. Thus, this request rings
hollow.
Plaintiffs also now assert that the interference claim extends outside their
pleadings to “an identifiable class of third parties.” Plaintiffs, however, do not provide
any evidence concerning the existence of this “class.” Liberty Heating & Cooling, Inc. v.
Builders Square, Inc., 788 F. Supp. 1438, 1451 (E.D. Mich. 1992) (granting summary
judgment dismissing claims of interference with a “class” of customers when no
evidence of this class was provided).
Plaintiffs also now claim that a “refusal” by Farmers to enter into a direct bill
contract with Plaintiffs constitutes “interference” by Farmers with Plaintiffs’ relationships
16

with its customers. This argument lacks merit. Plaintiffs do not have a “legal right to
require” Farmers to enter into a contract with them.
VI. Conclusion
For the reasons stated above, there is no genuine issue of material fact as to
whether plaintiffs can prevail on their claims. Reasonable minds could not differ that
based on the record, plaintiffs have failed to make out any triable issues. Accordingly,
Farmers’ motion for summary judgment is GRANTED. This case is DISMISSED.
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: 3/5/2018
Detroit, Michigan

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