Plumbers Local 98 Defined Benefit Pension Fund et al v. Oakland Contracting Co. d/b/a Oakland Plumbing Company, Inc. et al

Filing 10

ORDER denying without prejudice #6 Motion for Immediate Discovery. Signed by Magistrate Judge Michael J. Hluchaniuk. (WBar)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PLUMBERS LOCAL 98
DEFINED BENEFIT PENSION
FUND, et al.,
Plaintiffs,
v.
OAKLAND CONTRACTING CO.
d/b/a/ OAKLAND PLUMBING
COMPANY, Inc. & MICHAEL J.
SCOTT,
Defendants.
____________________________/

Case No.: 19-12610
Denise Page Hood
Chief United States District Judge
Michael J. Hluchaniuk
United States Magistrate Judge

ORDER DENYING WITHOUT PREJUDICE PLAINTIFFS’ MOTION FOR
IMMEDIATE DISCOVERY (ECF No. 6)
I.

PROCEDURAL HISTORY
Plaintiffs filed the instant suit on September 5, 2019, alleging that

defendants have failed to pay employee fringe benefit contributions pursuant to the
parties’ Collective Bargaining Agreement. (ECF No. 1). On September 17th,
plaintiffs filed an emergency motion for immediate discovery. (ECF No. 6). Chief
District Judge Denise Page Hood referred the motion to the undersigned. (ECF
No. 7). On October 2, 2019, plaintiff obtained a Clerk’s Entry of Default as a
result of defendants’ failure to answer the complaint. (ECF No. 9). Though the
named defendants were served with the pending motion for immediate discovery
(see ECF No. 6, PageID.26), they have not responded to the motion.

II.

ANALYSIS
Plaintiffs seek a Court order pursuant to Fed. R. Civ. P. 26(d) permitting

them to conduct early discovery for the purpose of obtaining the information
necessary to pursue construction liens or bonds. Specifically, plaintiffs seek to
depose, duces tecum, the individual defendant, Michael Scott, and/or any agent of
defendant Oakland Plumbing to obtain information regarding the identity of
projects involving the defendant company and the specific employees and hours
worked on those projects. (ECF No. 6, PageID.23). Plaintiffs intend to pursue
available liens or payment bonds in the event that defendants are unable to “fulfill
their obligation” under the Collective Bargaining Agreement, and to do so, they
need certain information. (Id. at PageID.24). According to the plaintiffs, “time is
of the essence” because there are deadlines that would restrict their ability to make
claims if not followed.
Immediate discovery is not warranted in this instance. Plaintiffs are
essentially seeking to obtain discovery in aid of execution of a judgment. But,
although default has been entered against the defendants, there is no judgment
against them as of the date of this Order. If judgment is entered against the
defendants, plaintiffs may obtain discovery in aid of the judgment or execution
under Fed. R. Civ. P. 69(a)(2), including conducting a creditor’s examination, if

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necessary. See, e.g., Lewis v. United Joint Venture, 2011 WL 13201856, at *2
(W.D. Mich. Feb. 24, 2011).
Further, plaintiffs have not demonstrated good cause to allow early
discovery. The Federal Rules of Civil Procedure generally require a discovery
conference under Rule 26(f) prior to the commencement of discovery. However,
under Fed. R. Civ. P. 26(d), the Court may enter an order permitting discovery in
advance of a scheduling conference. Fed. R. Civ. P. 26(d) (“A party may not seek
discovery from any source before the parties have conferred as required by Rule
26(f), except ... when authorized ... by court order.”). In deciding whether to
permit discovery in advance of the Rule 26(f) conference, the Court should
evaluate whether good cause exists. McCluskey v. Belford High School, 2010 WL
2696599, *1 (E.D. Mich. June 24, 2010) (citing Diplomat Pharm., Inc. v. Humana
Health Plan, Inc., 2008 WL 2923426, at *1 (W.D. Mich. July 24, 2008)); 8A Fed.
Prac. & Proc. Civ. § 2046.1 (3rd ed. 2010) (“Although the rule does not say so, it is
implicit that some showing of good cause should be made to justify an order, and
courts presented with requests for immediate discovery have frequently treated the
question whether to authorize early discovery as governed by a good cause
standard.”).
Though plaintiffs argue that time is of the essence because certain lien or
bond claims have deadlines, they have not sufficiently demonstrated the need for
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urgency. Plaintiffs cite M.C.L. § 570.1109(3) as an example of the need for
urgency. The statute states that a laborer has until the fifth day of the second
month after fringe benefit payments were due but not paid to file a notice of
furnishing to the designee (as defined in the statute) and the general contractor
named in the notice of commencement.1 But, plaintiffs have not demonstrated that
the laborers, or union members, are without the means to identify the general
contractors on the projects for which they provided labor to timely file a notice of
furnishing, unless plaintiffs conduct a deposition.
Plaintiffs also state that certain payment bonds have “timeframes” that must
be followed in order to make claims. (ECF No. 6, PageID.24). They intend to
pursue construction lien or bond claims on defendants’ projects or through direct
payments from the general contractors owing amounts to the defendants. (Id. at
PageID.23). Plaintiffs have not persuaded the Court that there is no other way to
quickly obtain the information necessary to pursue available liens or bonds at this
time, nor have they cited any other statute or discussed any other deadlines for
filing liens or pursuing bonds that are approaching. Even assuming deadlines are
fast approaching, presumably the employee members of the union would be able to
1

Plaintiffs’ “time is of the essence” argument is, in part, hollow. In citing M.C.L. §
570.1109(3), they state that the delinquency dates back to April 2018. The statute gives a laborer
until the fifth day of the second month after fringe benefit payments were due but not paid to
provide a notice of furnishing. For delinquencies dating as far back as April 2018, the twomonth deadline has long passed. It is not clear what information plaintiffs could obtain that
would allow them still to provide a notice of furnishing.

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provide information to plaintiffs about projects on which they provided labor,
including the locations of the projects and the number of hours they worked. For
these reasons, the motion for immediate discovery is DENIED WITHOUT
PREJUDICE.
It is also noteworthy that plaintiffs did not seek concurrence before bringing
this motion (considering the defendants were not yet in default at the time the
motion was filed), as required by Local Rule 7.1(a). Plaintiffs must follow the
Local Rules of this District. Failure to do so in future may result in an order
striking a motion or pleading.
IT IS SO ORDERED.
The parties to this action may object to and seek review of this Order, but
are required to file any objections within 14 days of service as provided for in
Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). A party may not
assign as error any defect in this Order to which timely objection was not made.
Fed.R.Civ.P. 72(a). Any objections are required to specify the part of the Order to
which the party objects and state the basis of the objection. When an objection is
filed to a magistrate judge’s ruling on a non-dispositive motion, the ruling remains
in full force and effect unless and until it is stayed by the magistrate judge or a
district judge. E.D. Mich. Local Rule 72.2.

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Date: October 9, 2019

s/Michael J. Hluchaniuk
Michael J. Hluchaniuk
United States Magistrate Judge

CERTIFICATE OF SERVICE
I certify that on October 9, 2019, I electronically filed the foregoing paper
with the Clerk of the Court using the ECF system, which will send electronic
notification to the following: David Selwocki, and I certify that I have mailed by
United States Postal Service the foregoing pleading to Michael Scott and Oakland
Contracting Co., d/b/a Oakland Plumbing Company, Inc., a non-ECF participant,
at the following address: 15900 32 Mile Road, Ray Twp., MI 48096.
s/William Barkholz
Case Manager

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