Persad et al v. Ford Motor Company

Filing 61

ORDER denying #57 Motion to Strike. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SURESH PERSAD, et al.,
Plaintiffs,

2:17-cv-12599
HON. TERRENCE G. BERG

v.
FORD MOTOR COMPANY,

ORDER DENYING
MOTION TO STRIKE

Defendant.
Plaintiffs Suresh Persad, Daniel G. Wright and Robert S.
Drummond filed this potential class action against Defendant Ford
Motor Company on behalf of all individuals in the United States who
purchased, leased, or owned a 2016 or 2017 Ford Explorer. They contend
that the vehicles include defective exhaust, heating, ventilation, and air
conditioning systems that permit exhaust odors and gases, including
carbon monoxide, to reach the passenger compartment while the vehicles
are in use. The Amended Complaint asserts claims under the MagnusonMoss Warranty Act, 14 U.S.C. § 2301 et seq., as well as various claims
under the laws of multiple states. The case is now before the Court on
Plaintiffs’ motions to strike several exhibits to Defendants’ brief in
opposition to the motion for class certification, and for expedited
consideration of that motion. ECF Nos. 57, 58. The Court will grant

Plaintiffs’ motion for expedited review of their motion to strike but deny
their motion to strike Exhibits 30 through 33 to Defendant’s response
brief.
DISCUSSION
Plaintiffs in this case filed a motion seeking to certify a class of
individuals who purchased, leased, or owned a 2016 or 2017 Ford
Explorer. The Court granted both parties permission to file lengthier
briefs in support of, and in opposition to, the motion for class certification.
See ECF No. 45 (June 24, 2019 Stip. and Order). Accordingly, Ford’s
page-limit for its response to the motion for class certification was
extended to 35 pages. Id. Though Ford’s brief complies with this 35-page
maximum,

Plaintiffs

contend

that

Ford,

without

the

Court’s

authorization, circumvented this page-limit by including additional
briefing in the form of appendices to its response brief. See generally ECF
No. 57. These appendices—labelled Exhibits 30 through 33—comprise
charts summarizing case law from various federal and state courts that
Defendant considers relevant to the claims for implied warranty,
fraudulent concealment, unjust enrichment, and express warranty,
which are asserted under the laws of multiple states. See ECF Nos. 5531, 55-32, 55-33, 55-34.
The case charts are essentially reference tools for the Court that
contain citations to various state and federal cases grouped under
headings that are largely non-argumentative. For example, in one of the
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charts, titled “Select Variation of State Law Concerning Breach of
Implied Warranty,” the headings are titled, simply, “Privity Not
Required” and “Privity Required.” ECF No. 55-31 PageID.3244. Some of
the charts’ headings are indeed longer and could be construed as more
argumentative, for example, “Pre-Suit Notice Required, But Exception
May Exist for Unsophisticated Consumers Against Manufacturers With
Whom They Have Not Dealt.” ECF No.55-31 PageID.3246. Yet the
primary purpose of the headings appears to be organizing the case
citations in a manner that permits facile reference by the Court. Any
analysis included in the charts is cursory and geared towards
summarizing the holdings of the listed cases rather than explaining how
they apply to the facts of the instant case, or what weight the Court
should give each case.
Plaintiff points out that this Court’s Practice Guidelines require
that all briefs before it “contain citation to appropriate authorities within
the text of the brief.” This language is intended to remind parties to
provide adequate legal support for their briefs—not to prohibit them from
attaching exhibits that may include more detailed citations of legal
authority. Parties routinely append entire opinions that are obviously not
quoted in full in the text of their briefs, without inviting a motion to
strike. The Court will not ordinarily prohibit the use of nonargumentative summary exhibits that contain relevant citations to
federal and state court decisional or statutory law that may be helpful in
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a complex case such as this involving several different claims arising
under the laws of multiple states. The parties should pay heed, however,
to the narrow constraints that apply to such exhibits. Appendices may be
used if they provide a reference for the Court to relevant legal authorities
without engaging in argumentation or one-sided analysis. If such
summaries contain argumentative headings, advocacy, or interpretive
analysis intended to persuade, they will be stricken as in excess of the
page-limits that apply to briefs. Counsel for both parties know the
difference between a table of cases divided by topic and an extended legal
argument. The appendices at issue here are the former and will not be
stricken.
Plaintiffs pray that, should the Court fail to grant their motion to
strike, they be permitted (a) two additional weeks to prepare a sur-reply
responding to Defendant’s appendices and (b) a 48-page enlargement of
the page-limit for their reply so that they may “clearly and effectively
analyze and respond to each of the several hundred cases cited in the
Appendices.” The first request is granted: Plaintiffs will have until
September 10, 2019 to file their reply in further support of the motion
for class certification. The second request is denied. There is no need to
“clearly and effectively analyze and respond” to a list of cases. ECF No.
57 PageID.3987. If Plaintiffs wish to attach appendices to their reply that
contain tables of relevant authorities they may do so. But if those

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appendices include legal argumentation, persuasive analysis, or
advocacy, they will be stricken.
The Court is giving the parties leeway in this complex class
litigation to present reference materials by way of summary exhibits. If
the latitude granted by this order is abused in the future by counsel
submitting exhibits that cross the line from instructive reference tools to
legal arguments and advocacy, such exhibits will be swiftly stricken.
CONCLUSION
For these reasons, Plaintiffs’ motion for expedited consideration of
their motion to strike (ECF No. 58) is GRANTED but Plaintiffs’ motion
to strike Exhibits 30 through 33 to Defendant’s brief in opposition to the
motion for class certification (ECF No. 57) is DENIED. Plaintiffs’ reply
is due September 10, 2019.
Dated: August 20, 2019

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

Certificate of Service
I hereby certify that this Order was electronically filed, and the
parties and/or counsel of record were served on August 20, 2019.
s/A. Chubb
Case Manager

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