R.V.M Associates, Inc. v. Metal-Matic, LLC et al.

Filing 64

ORDER DENYING PLAINTIFF'S MOTION (ECF No. 52 ) TO STRIKE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF No. 47 ). Signed by Magistrate Judge Anthony P. Patti. (KBro)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
R.V.M. Associates, Inc.,
Plaintiff,

Case No. 2:22-cv-13065
District Judge Matthew F. Leitman
Magistrate Judge Anthony P. Patti

v.
METAL-MATIC, L.L.C. and
METAL-MATIC, INC.,
Defendants.
___________________________________/

ORDER DENYING PLAINTIFF’S MOTION (ECF No. 52) TO STRIKE
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (ECF No. 47)
In this lawsuit, R.V.M. Associates, Inc. (“Plaintiff”) sues Metal-Matic,
L.L.C. and Metal-Matic, Inc. (“Defendants”), with causes of action based on
breach of contract, violation of the Michigan Sales Representative Act (Mich.
Comp. Laws § 600.2961), unjust enrichment, and promissory estoppel. (ECF No.
1, ¶¶ 21-54.)
A.

Defendants’ Fed. R. Civ. P. 30(b)(6) Witnesses

In October 2023, Plaintiff noticed a Rule 30(b)(6) deposition, for which
there were ten enumerated topics. (ECF Nos. 23-16, 46-10.) Plaintiff deposed
Defendants’ first Rule 30(b)(6) witness, Thomas Jackson, on October 17, 2023.
(ECF Nos. 23-13, 27-7, 33-4, 47-4, 48-4.) On November 14, 2023, Plaintiff filed a
motion, which, in part, sought to compel the 30(b)(6) deposition of Metal-Matic.
1

(ECF No. 23.) The Court’s December 20, 2023 order granted Plaintiff’s motion to
the extent it sought a Rule 30(b)(6) deposition, noted that Jackson testified
inadequately as to Topic 1, and further ordered, inter alia, that Vince Fera “MUST
be prepared to testify on Topics 1 and 8, consistent with obligations under Fed. R.
Civ. P. 30(b)(6), even if he has to pick up the phone and call someone in
preparation, e.g., Jim Craig, Manish Bhatt, etc., or otherwise investigate.” (ECF
No. 36, PageID.1769-1770 (emphasis in original).)
Plaintiff noticed another Rule 30(b)(6) deposition, this time with just two
enumerated topics – “[t]he sales representative relationship between R.V.M. and
Metal-Matic[,]” and “[e]ach of Metal-Matic’s Affirmative Defenses.” (ECF No.
46-14.) Plaintiff deposed Defendants’ second Rule 30(b)(6) witness, Vince Fera,
on January 26, 2024. (ECF No. 46-4.) During that deposition – with reference to
the December 2023 order (see ECF No. 36) and the April 22, 2024 status
conference (see ECF No. 61, PageID.2833) – Plaintiff’s counsel registered the
following objection:
Both Judge Leitman on page 6 at length and Judge Patti made it very
clear as to what investigation was required in order to prepare for
today’s deposition, and it is absolutely my position that it wasn't done,
and we'll have to resolve that with the court.
(ECF No. 46-4, PageID.2030 [p. 144].)

2

B.

Pending Dispositive Motions

Among the motions currently pending before the Court are Plaintiff’s
February 19, 2024 motion for summary judgment (ECF No. 46), and Defendants’
same-day motion for summary judgment (ECF No. 47). For purposes of the matter
at bar, it is notable that Defendants do not attach Fera’s January 2024 deposition
transcript. Instead, Defendants attachments include Jackson’s October 17, 2023
deposition (ECF No. 47-4), as well as the February 2024 declarations from
Thomas A. Jackson (ECF No. 47-2), James D. Craig (ECF No. 47-6), and Gerard
M. Jones (ECF No. 47-7).
The briefing schedule for these cross-motions was enlarged and extended,
pending a ruling on the instant motion. (ECF No. 50; ECF No. 61, PageID.28392840.) At this point, the parties appear to be challenging each other’s summary
judgment motions by different means.1
C.

Instant Motion

Currently before the Court is Plaintiff’s March 12, 2024 motion (ECF No.
52) to strike Defendants’ motion for summary judgment (ECF No. 47). Judge
Leitman has referred to me the motion to strike for hearing and determination.
For example, Defendants have filed a motion to exclude testimony and opinions
of Plaintiff’s proffered expert Jeffrey A. Silagy (ECF No. 48), whose expert
witness report is attached to Plaintiff’s motion for summary judgment (see ECF
No. 46-15). Plaintiff has filed a response (ECF No. 49), Defendants have filed a
reply (ECF No. 51), and the motion is before Judge Leitman.

1

3

(ECF No. 57.) Defendants have filed a response (ECF No. 60), Plaintiff has filed a
reply (ECF No. 62), and the parties have filed a joint list of unresolved issues (ECF
No. 63).
On May 30, 2024, I conducted an in person hearing, at which Attorneys
Joseph J. Shannon, III, Rebecca El Badaoui, Joshua Vaughn, and Neil B. Pioch
appeared. (See ECF No. 58.)
D.

Order

Upon consideration of the motion papers and oral argument, and for all the
reasons stated on the record by the Court, which are hereby incorporated by
reference as though fully restated herein, Plaintiff’s March 12, 2024 motion (ECF
No. 52) to strike Defendants’ motion for summary judgment is DENIED.
Specifically:
1.

Vince Fera understood his obligations as a Rule 30(b)(6) witness.

2.

Fera was prepared to testify about the noticed topics. The focus of

Plaintiff’s motion was on the sales relationship topic (as opposed to the affirmative
defenses topic), and Defendants convincingly have set forth multiple portions of
Fera’s deposition testimony to show he “was adequately prepared and fulfilled his
Rule 30(b)(6) obligations on Topics One and Eight[,]” (ECF No. 60, PageID.27672769), and to show he “provided substantive testimony regarding what was known
or reasonably available to Metal-Matic on Topics One and Eight[,]” (id.,
4

PageID.2769-2771). Moreover, the focus of Plaintiff’s motion has been on
preparation, and Rule 30(b)(6) does not say when the preparation must take place
or what specific steps must be taken to prepare in any given case. The Court is
satisfied that Fera took the steps he thought in good faith were necessary to be
prepared and that he was, in fact, adequately prepared. In fact, when asked how
much time he spent getting prepared for his deposition, Fera testified “[o]ver the
course of the last two weeks, somewhere between probably 20 and 30 hours.”
(ECF No. 46-4, PageID.2029 [p. 141].) Fera has been involved in these
proceedings from the inception of the pleadings and has spoken numerous times
with other knowledgeable people about the underlying facts on which he was
designated to testify. He also attended all depositions.
3.

Although Metal-Matic’s Motion for Summary Judgment relies on

declarations from Jones, Craig, and Jackson (ECF Nos. 47-2, 47-6, 47-7),
Defendants’ 30(b)(6) witnesses were not obligated to interview them. Plaintiff
did not take the depositions of Jones, Craig, or Jackson. Nor did Plaintiff file a
motion to extend discovery or serve a related request to admit. Moreover, even if
the declarations contradict Jackson and Fera’s Rule 30(b)(6) testimony (ECF Nos.
46-4, 47-4) as to the most important issues in this case, a point Defendants’ dispute
(see ECF No. 60, PageID.2778-2782), there is no rule that – just because Rule
30(b)(6) testimony is given – contradictory evidence cannot be pointed out in
5

response. Although Plaintiff argues that Fera could not testify adequately about
“the inception of the relationship” between the parties (a characterization used but
not defined in no less than three deposition questions), there is a significant
difference between the “inception of a relationship” ̶ whatever that nebulous
concept may entail ̶ and the formation of a contract or legally significant
commercial arrangement. (See ECF No. 46-4, PageID.2010, 2016.) In the end, it
will be for Judge Leitman, when considering the pending cross-motions for
summary judgment (ECF Nos. 46, 47), to determine the competency of the
evidence offered by each side and determine whether the Rule 30(b)(6) testimony
binds the corporation in such a manner as to make contrary evidence from other
sources valueless here. And, if this case proceeds beyond summary judgment, it
will be for the jury to determine the relative weight of contradictory evidence, after
hearing the cross-examination and argument propounded by counsel.
4.

R.V.M. has misinterpreted the Court’s Orders and Instructions related

to Fera’s Deposition. The Court’s December 20, 2023 order (ECF No. 36) did not
obligate Fera “to interview employees with personal knowledge of the subjects
identified in the notice,” and did not mandate that he contact witnesses (see ECF
No. 63, PageID.2859); instead, the Court’s order gave examples, namely, “even if
he has to pick up the phone and call someone in preparation, e.g., Jim Craig,

6

Manish Bhatt, etc., or otherwise investigate.” (ECF No. 36, PageID.1770
(emphases added).)
5.

R.V.M.’s Motion to Strike fails to identify a violation of this Court’s

orders, a violation of Rule 30(b)(6), or what the deponent failed to answer. In
fact, Plaintiff opted not to seek sanctions under Fed. R. Civ. P. 37(b) for violation
of the Court’s prior related orders, and Plaintiff’s counsel stated at oral argument
that Fera’s testimony “was what it was” and that Plaintiff decided “to live with it”
and not file another discovery motion. Notably, despite the attacks on it in the
motion at bar, Plaintiff actually relies upon and attaches Fera’s Rule 30(b)(6)
testimony in support of its summary judgment motion, while simultaneously
attacking this same witness for lack of investigation, preparation and knowledge.
(ECF No. 46, PageID.1927-1929, 1931-1937, 1946; see also ECF No. 46-4.)
Having elected “to live with” Fera’s Rule 30(b)(6) testimony and use it in support
of its own motion for summary judgment, Plaintiff can hardly use that same
testimony and the witness’s alleged lack of preparation as a basis to strike
Defendant’s summary judgment motion, particularly when motions to strike “‘are
viewed with disfavor and are not frequently granted.’” Bommarito v. Equifax, 340
F.R.D. 566, 568-569 (E.D. Mich. 2022) (quoting Operating Eng’rs Local 324
Health Care Plan v. G & W Constr. Co., 783 F.3d 1045, 1050 (6th Cir. 2025)).

7

IT IS SO ORDERED. 2
Dated: June 4, 2024

Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

The attention of the parties is drawn to Fed. R. Civ. P. 72(a), which provides a
period of fourteen (14) days after being served with a copy of this order within
which to file objections for consideration by the district judge under 28 U.S.C. §
636(b)(1).
2

8