Powerhouse Licensing, LLC v. CheckFree Services Corporation

Filing 54

ORDER Denying 36 Motion to Vacate Order on Motion to Compel , 37 Denying Plaintiff's Second MOTION to Compel RENEWED AND SUPPLEMENTED. Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
POWERHOUSE LICENSING, LLC
Doing business as
POWERHOUSES GYMS INTERNATIONAL,

Plaintiff,
Case No. 12-cv-13534
Honorable Gershwin A. Drain
v.

CHECKFREE SERVICES CORPORATION
Doing business as
FISERV, INC.,

Defendant.
____________________________/

ORDER DENYING PLAINTIFF’S MOTION TO VACATE ORDER ON MOTION TO
COMPEL [#36] AND DENYING PLAINTIFF’S SECOND MOTION TO COMPEL
RENEWED AND SUPPLEMENTED[#37]
I. INTRODUCTION

On August 10, 2012, pursuant to 28 U.S.C. § 1332, Defendant removed the instant
action to this Court from Oakland County Circuit Court. The complaint contains multiple
allegations: Breach of Agreement (Count I), Unjust Enrichment (Count II), and Accounting
(Count III). From January 1, 2007, through January 1, 2012, the parties had an agreement
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where Defendant was designated as a “preferred vendor” for specific merchant processing
and accounting services to its licensees. Pursuant to agreed upon algorithms in the
agreement, Defendant was allegedly obligated to make regular payments to Plaintiff.
Furthermore, the agreement provided for Defendant to give Plaintiff discounts on services
and products, monthly reports that contained Plaintiff’s and Plaintiff’s licensees’ business
activities, and monthly rebates. Plaintiff contends that it has not received any reports or
information from the Defendant. Thus, Plaintiff maintains that it cannot make a
determination of the amounts owed under the agreement. Plaintiff has not received any
monies from Defendant.
Presently before the Court is Plaintiff’s Motion to Vacate Order on Motion to Compel
and Plaintiff’s Second Motion to Compel Renewed and Supplemented. For the reasons
stated below, both Motions are DENIED.

II. BACKGROUND

On May 8, 2013, the Court issued and Order dismissing Plaintiff’s Second Motion
to Compel because Plaintiff failed to appear for a scheduled status conference/hearing set
to address Plaintiff’s motion. See Dkt. No. 33, 35. Subsequent to Plaintiff not appearing for
the scheduled conference, Plaintiff filed a Motion to Vacate the Court’s May 8, 2013, Order.
In addition to filing the Motion to Vacate, Plaintiff renewed and supplemented its Second
Motion to Compel with an almost identical motion to the Plaintiff’s April 25, 2013, Second
Motion to Compel, which the Court previously dismissed.

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III. LAW AND ANALYSIS

“The scope of discovery under the Federal Rules of Civil Procedure is
traditionally quite broad.” Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998).
Federal Rule of Civil Procedure 26 (b) (1) permits parties to “obtain discovery regarding
any non-privileged matter that is relevant to any party’s claim or defense . . . if the
discovery appears reasonably calculated to lead to the discovery of admissible
evidence.” FED. R. CIV. P. 26(b)(1).

A. Plaintiff’s Motion to Vacate [#35]

In Plaintiff’s Motion to Vacate, Plaintiff’s counsel states that he nor his assistant
received the Electronic Court Filing (“ECF”) notice from the Court Clerk informing
Plaintiff of the scheduled May 7, 2013, status conference/hearing. Upon review of the
Court’s docket, the docket shows that timely notice was emailed to the email addresses
of record for all parties. See Dkt. No. 33. Plaintiff’s counsel asserts that he was not in
receipt of the notice of the conference nor did he receive an ECF notification of the filing
of the Defendant’s response to the Second Motion to Compel. Plaintiff’s counsel offers
various theories as to why he may not have received the ECF notice of Dkt. No. 33, and
yet received other ECF notices from the Court.
In the absence of reliable contrary evidence, courts presume that such docket
entries are accurate. See Kinard v. Booker, Case No. 2:09-CV-14759, 2010 U.S. Dist.
LEXIS 10957, at *5 (E.D. Mich. Feb. 8, 2010); see also, Butler v. Principi, 244 F.3d
1337, 1340 (Fed. Cir. 2001); Arnold v.Wood, 238 F.3d 992, 995 (8th Cir. 2001).
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Plaintiff’s counsel was in receipt of ECF notices both before and after the ECF notice of
Dkt. No. 33 was allegedly not received. The Court has not received any bounce-back
messages or any messages indicating that the transmission of ECF notification of Dkt.
No. 33 was unsuccessful. Therefore, the Court finds Plaintiff’s counsel’s theories to be
unavailing. Plaintiff’s Motion to Vacate [#36] is DENIED.

B. Plaintiff’s Second Motion to
Compel Renewed and Supplemented [#37]

Plaintiff has submitted to the Court a renewed and supplemented Second Motion
to Compel. Plaintiff’s motion mirrors its April 25, 2013, Second Motion to Compel, which
the Court dismissed on May 8, 2013, and that the Court herein has denied. The Court
will not address paragraphs 2 - 42 because those paragraphs were already dismissed in
Plaintiff’s prior motion. See Dkt. No. 33. However, the Court will address the
supplemented discovery issues Plaintiff has raised within the motion.
In the remaining paragraphs of Plaintiff’s Motion, Paragraphs 43-48, Plaintiff
seeks to depose Defendant’s employee, Ms. Shirley Kirker (“Kirker”), a contract
administrator, who initialed the Preferred Vendor Agreement and works in the
Defendant’s legal department. Plaintiff argues that Defendant refused to make Kirker
available for a deposition and offered no reason other than the fact that Kirker worked in
Defendant’s legal department.
Defendant argues that Kirker is an agent of its in-house counsel and provided
Defendant with negotiation strategy; thus, Defendant’s in-house counsels’ attorneyclient privilege extends to Kirker. Furthermore, Defendant argues that Plaintiff has not
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presented evidence that Kirker negotiated directly with Defendant, nor does Kirker recall
having any such negotiations. Defendant maintains that for the aforementioned
reasons, Kirker should not be deposed.
When confidential communication is made between an attorney and an agent for
the purpose of assisting the attorney in giving legal advice to a client, the attorney-client
privilege extends to the agent of that attorney. See Arkwright Mut. Ins. Co. V. Nat’l
Union Fire Ins. Co. op Pittsburgh, Pa., Case No. 93-3084, 1994 U.S. App. LEXIS 3828,
at * 20 (6th Cir. Feb. 25, 1994.). Here, Defendant states that Kirker was privy to the
strategies of in-house counsel and provided information on behalf of counsel to
Defendant. Plaintiff simply indicates that he wants to depose Kirker because she
initialed the last page of the Preferred Vendor Agreement. Without more, Ms. Kirker is
not required to be presented for deposition, and Plaintiff’s Second Motion to Compel is
DENIED.
Accordingly,
IT IS ORDERED that Plaintiff’s Motion to Vacate Order on Motion to Compel
[#36] is DENIED.

IT IS FURTHER ORDERED that Plaintiff’s Second Motion to Compel Renewed
and Supplemented [#37] is DENIED.

SO ORDERED.
Dated: July 22, 2013

/s/Gershwin A Drain
GERSHWIN A. DRAIN
United States District Judge

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