Hendrickson v. Fifth Third Bank et al

Filing 110

ORDER granting #45 Motion to Alter/Amend/Supplement Pleadings; denying #31 Motion for Protective Order; and staying certain specified discovery as outlined herein. (Written Opinion) Signed by Magistrate Judge Tony N. Leung on 11/27/2018. (JRE)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Kelley L. Hendrickson,

Case No. 18-cv-86 (WMW/TNL)

Plaintiff,
v.

ORDER

Fifth Third Bank, and 11th Hour
Recovery, Inc.,
Defendants.

Thomas J. Lyons, Jr., Consumer Justice Center, P.A., 367 Commerce Court, Vadnais
Heights, MN 55127; Adam R. Strauss, Tarnish Cody, PLC, 6337 Penn Avenue South,
Minneapolis, MN 55423 (for Plaintiff);
C.J. Schoenwetter & David J. Carrier, Bowman and Brooke LLP, 150 South Fifth Street,
Suite 3000, Minneapolis, MN 55402 (for Defendant Fifth Third Bank); and
Michael G. Phillips, Phillips Law, PLLC, 1155 East Grain Exchange Building, 412 South
Fourth Street, Minneapolis, MN 55415 (for Defendant 11th Hour Recovery, Inc.).

This matter is before the Court on Plaintiff’s Motion for Leave to File Amended
Complaint (ECF No. 45) and Defendant Fifth Third Bank’s Motion for Protective Order
(ECF No. 31).
I.

BACKGROUND
In August 2016, Plaintiff Kelley L. Hendrickson obtained a loan from Defendant

Fifth Third Bank (“Fifth Third”) for the purchase of an automobile. Compl. ¶ 15 (ECF. No.
1). The original balance on the loan was $14,419.37. Id. at ¶ 17. As a condition of the loan,
Plaintiff granted Fifth Third a security interest in the automobile. Id. at ¶ 16.
1

Between June and October 2017, Plaintiff made five late payments on her loan,
which Fifth Third accepted. Id. at ¶ 24. Plaintiff further claims that she spoke with a Fifth
Third representative on several occasions, who told Plaintiff that Fifth Third would not
repossess her car as long as she continued to make payments. Id. at ¶ 25. At no point did
Fifth Third indicate to Plaintiff, either orally or in writing, that it intended to strictly enforce
the terms of Plaintiff’s loan agreement. Id. at ¶ 27.
Sometime around October 2017, Fifth Third hired Defendant 11th Hour Recovery,
Inc. (“11th Hour”) to repossess the car. Id. at ¶ 28. According to Plaintiff, 11th Hour
repossessed Plaintiff’s car in the middle of October, without providing any notice to her
beforehand. Id. at ¶ 29-30. Plaintiff subsequently filed suit in Hennepin County. Plaintiff
alleged that 11th Hour violated the Federal Debt Collection Practices Act, that Fifth Third
unlawfully converted her car, and that both Defendants violated Minnesota Statutes section
336.9-609. Id. at ¶¶ 35-49. Fifth Third removed the lawsuit to federal court (ECF No. 1).
On March 13, 2018, the Court issued its pretrial scheduling order (ECF No. 9).
Among other things, the pretrial scheduling order required the parties to file amended
pleadings no later than May 1, 2018. On June 1, 2018, Plaintiff moved to amend the pretrial
scheduling order, seeking to extend the deadline to file amended pleadings to August 1,
2018 (ECF No. 17). Plaintiff’s motion was based in part on the fact that she had retained
new counsel. Approximately six weeks later, in response to discovery requests that Plaintiff
served on June 13, 2018, Fifth Third moved for a protective order (ECF No. 31).
The Court granted Plaintiff’s motion to amend the pretrial scheduling order on July
26, 2018 (ECF No. 37) and issued an amended scheduling order the same day, extending
2

the deadline to file amended pleadings to August 1, 2018 (ECF No. 38). On August 1,
2018, Plaintiff filed a motion for leave to file an amended complaint (ECF No. 45).
Plaintiff’s amended complaint seeks to (1) turn her individual action into a putative class
action and (2) add ten “John Doe Repossession Agencies” as defendants. The Court held a
hearing on October 30, 2018 on both Plaintiff’s motion to file an amended complaint and
Fifth Third’s motion for a protective order (ECF No. 98). At that hearing, the Court ordered
the parties to file supplemental briefing related to Fifth Third’s motion for a protective
order. The parties filed their briefs on November 13, 2018 and the Court took both motions
under advisement.
II.

MOTION TO AMEND
A. Legal Standard
Once 21 days have passed after service of a responsive pleading, a party “may

amend its pleading only with the opposing party’s written consent or the court’s leave.”
Fed. R. Civ. P. 15(a)(2). “Although leave to amend ‘shall be freely given when justice so
requires,’ see Fed. R. Civ. P. 15(a), plaintiffs do not have an absolute or automatic right to
amend.” United States ex rel. Lee v. Fairview Health Sys., 413 F.3d 748, 749 (8th Cir.
2005) (citing Meehan v. United Consumers Club Franchising Corp., 312 F.3d 909, 913
(8th Cir. 2002)). The Court may deny a party’s request for leave to amend only “if there
are compelling reasons such as undue delay, bad faith, or dilatory motive, repeated failure
to cure deficiencies by amendments previously allowed, undue prejudice to the nonmoving party, or futility of the amendment.” Reuter v. Jax Ltd., Inc., 711 F.3d 918, 922
(8th Cir. 2013) (quoting Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir.
3

2008)). “[A] motion to amend should be denied on the merits ‘only if it asserts clearly
frivolous claims or defenses.’” Becker v. Univ. of Nebraska at Omaha, 191 F.3d 904, 908
(8th Cir. 1999) (quoting Gamma–10 Plastics, Inc. v. American President Lines, Ltd., 32
F.3d 1244, 1255 (8th Cir. 1994)).
Defendants argue that Plaintiff’s motion should be denied because they will suffer
substantial prejudice and because Plaintiff’s proposed amendments are futile.
Alternatively, Defendants argue that, if the motion for leave to amend is granted, the Court
should consolidate this matter with a class action complaint filed in Sampson et al. v. Fifth
Third Bank, No. 18-cv-1622 (D. Minn.) on June 11, 2018.
B. Prejudice
At the outset, Defendants cite to two cases in support of their argument that the
additional cost and burden of litigating class allegations constitutes reason to deny
Plaintiff’s motion for leave to amend. See Rogers v. Medicredit, Inc., No. 4:12-cv-2277,
2013 WL 4496278, *3 (E.D. Mo. Aug. 21, 2013); Wonasue v. Univ. Md. Alumni Ass’n,
No. PWG-11-3657, 2013 WL 3009316 *5 (D. Md. June 14, 2013). 1 Those cases, however,
relate to motions that were brought outside the deadlines for filing amended pleadings as
set forth in the respective scheduling orders. See Rogers, 2013 WL 4496278 at *1;
Wonasue, 2013 WL 3009316 at *3. When seeking to amend a complaint outside of the

1
Defendants also reference Niesse v. Shalala, 17 F.3d 264, 266 (8th Cir. 1994) a case cited in Rogers. It is not apparent
from that case whether the court was reviewing a motion to amend under Rule 15 or 16. See Niesse, 27 F.3d at 266.
In that case, which was before the district court following a social security administrative proceeding, Plaintiff moved
to amend her complaint only after the administrative decision was issued, discovery was completed, and the matter
was nearly ready for the court’s consideration. Id. Here, however, Plaintiff moved to amend within the deadlines
provided by the scheduling order and while substantial discovery remained outstanding.

4

deadlines provided by the scheduling order, the plaintiff must show “good cause.” Fed. R.
Civ. P. 16(b)(4). Here, however, because Plaintiff moved for leave to amend within the
deadlines provided by the scheduling order, she must only satisfy the standard set forth by
Federal Rule of Civil Procedure 15, which is far “more liberal” than Rule 16’s good cause
standard. Rogers, 2013 WL 4496278 at *1 (citing Sherman, 532 F.3d at 716). Motions for
leave to amend under Rule 15 may only be denied in “limited circumstances.” Roberson v.
Hayti Police Dept., 241 F.3d 992, 995 (8th Cir. 2001). The Rule 15 standard is the standard
that the Court must apply when evaluating Plaintiff’s motion for leave to amend.
Defendants argue that if Plaintiff’s motion for leave to amend is granted, “every
document,” “every deposition,” “every hour” spent on “class discovery”, and every “classrelated motion[]” in this case will be duplicative of Defendants’ efforts in Sampson. In
making this argument, Defendants presume that Plaintiff’s proposed class action complaint
is identical to the class-action complaint filed in Sampson, a point that Plaintiff contests.
But even assuming for purposes of this motion that Defendants’ presumption is true,
Defendants still do not demonstrate that they will be suffer undue prejudice if the Court
grants Plaintiff’s motion for leave to amend. Matters that involve common questions of
law or fact can be consolidated, joined for trial, or coordinated in any other way “to avoid
unnecessary cost or delay.” Fed. R. Civ. P. 42(a)(1)-(3). Thus, if this case and Sampson
overlap significantly, as Defendants claim they do, Defendants may move for the two
matters to be consolidated or coordinated under Rule 42. Such a motion would allow
Defendants to coordinate discovery and motion practice and would mitigate any prejudice

5

that Defendants would suffer because of the similarities between Plaintiff’s proposed
amended complaint and the Sampson action.
Defendants also argue that they will be prejudiced by the addition of ten “John Doe”
defendants to this litigation. They contend that the addition of these parties will likely cause
a delay of one year or more to the current trial date of August 1, 2019. In a motion to amend
brought under Rule 15, undue delay alone “is insufficient to deny leave to amend a
complaint.” IBEW Local 98 Pension Fund v. Best Buy Co., Inc., 326 F.R.D. 513, 527 (D.
Minn. 2018). Leave to amend may only be denied if the delay results in unfair prejudice to
the non-moving party. Id.; see also Rogers, 2013 WL 4496278 at *1.
Here, the only articulable prejudice that Defendants identify that would result from
the delay is the potential rescheduling of their motions-to-dismiss, scheduled to be heard
on December 7, 2018. 2 But that prejudice is Defendants’ own doing. Defendants chose to
file their motions-to-dismiss on October 19 and 24, two months after Plaintiff filed her
motion for leave to amend her complaint and three months after the Court extended the
deadline for Plaintiff to amend her pleadings. Defendants cannot point to pending
dispositive motions as evidence of prejudice when they chose file those motions after
Plaintiff filed a motion that Defendants knew might be ruled on first and might affect the
timing of their dispositive motions.

2

Defendants also argue that a second round of dispositive motions might be necessary to address arguments by the
ten John Doe defendants. Defendants do not articulate how they would participate in those motions, and thus the only
prejudice they would suffer is delay, which is insufficient to deny Plaintiff’s motion. IBEW Local 98 Pension Fund,
326 F.R.D. at 527.

6

This is not the first time that Defendants have made this argument. When
Defendants opposed Plaintiff’s motion to amend the pre-trial scheduling order, they also
claimed that they would suffer prejudice because the new scheduling order would require
Defendants to reschedule previously noticed dispositive motions. This Court rejected that
argument, finding good cause to amend the scheduling order and noting that Defendants
could not point to pending motions as evidence of prejudice when they knowingly chose
to file those motions after Plaintiff moved to amend the scheduling order. Despite that
admonition, Defendants again make the same argument. For the same reasons as before,
the Court rejects it. 3
C. Futility
Defendants also contend that the Court should deny Plaintiff’s motion for leave to
amend as futile. A motion for leave to amend pleadings is futile when the amended
pleadings would not be able to withstand a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Zutz v. Nelson, 601 F.3d 842, 850 (8th Cir. 2010). Defendants,
however, do not argue that Plaintiff’s proposed amendments could not withstand a motion
brought under Rule 12(b)(6). Instead, they argue Plaintiff’s motion is futile because her
proposed class could not be certified under Federal Rule of Civil Procedure 23. Defendants
contend that Plaintiff is not an adequate class representative because she is employed by

3

Plaintiff believes that her proposed Amended Complaint maintains the same allegations and counts as her current
Complaint. If Defendants agree, they certainly may propose to the District Judge that their motion to dismiss go
forward as scheduled, as there would likely be no difference on the legal merits of the two complaints. To be clear,
however, the final say in that decision would be left to the District Judge.

7

her counsel. See Fed. R. Civ. P. 23(a)(4) (requiring the representative party in class action
be able to “fairly and adequately protect the interests of the class”).
The Court does not find Defendants’ argument to be persuasive for three reasons.
First, it is typically appropriate to allow a plaintiff to amend a complaint to add class
allegations when a “defendant’s opposition to the amendment involves not-yet-certified
classes.” Presser v. Key Food Stores Co-Op., 218 F.R.D. 53, 57 (N.D.N.Y. 2003). This is
because arguments against certification are better “addressed in the context of motions to
certify the proposed classes.” Id. (citation omitted) At the class certification proceeding,
Defendants can renew any arguments they have regarding Plaintiff’s adequacy as a class
representative and the parties meaningfully can test those arguments through a complete
briefing of the relevant issues. In addition, it is more efficient for the Court to address
Defendant’s argument following class discovery because the Court will then have a record
on which it can evaluate both Plaintiff’s adequacy as a class representative as well as the
other class certification factors required for a proper Rule 23 analysis, rather than evaluate
each factor piecemeal.
Second, because Defendants may well move for consolidation of this matter with
Sampson, it would also be more appropriate for arguments regarding class certification to
be heard after the consolidation motion is decided. Typically, when two classes are
consolidated, the parties move for appointment of a lead plaintiff and lead class counsel
for the consolidated class. See generally Fed. R. Civ. P. 23(a), (g)(3). If Sampson and this
case are consolidated, it is possible, depending on the outcome of the motion for
appointment of lead plaintiff and lead counsel, that Plaintiff will no longer be required to
8

represent the interests of the class. If that is the case, then Defendants’ concerns regarding
Plaintiff’s adequacy as a class representative would be rendered moot.
Finally, were this Court to deny Plaintiff’s motion on the grounds that she cannot
serve as an adequate class representative, the Court would be rendering a tacit decision on
the merits of Plaintiff’s future motion to certify her class. Class-certification motions are
dispositive motions that must be heard and decided by the District Judge. D. Minn. L.R.
7.1(c)(6)(C). Under these circumstances, it is more appropriate for this Court to “permit
the amendment and allow the merits” of Defendants’ claims regarding Plaintiff’s adequacy
as a class representative “to be tested” at the class certification hearing before the District
Judge. See Arcaro v. City of Anoka, No. 13-cv-2772, 2014 WL 12605451 *3, (D. Minn.
July 16, 2014) (adopting similar logic when denying a motion for leave to amend on the
grounds that the proposed complaint would not survive a motion to dismiss under Rule
12(b)(6)).
In reaching this decision, this Court takes no position regarding Defendants’ claim
that Plaintiff is an inadequate class representative. The Court merely concludes that at this
stage of litigation, it would be more efficient for the amendment to go forward, for the
parties to determine what motion practice is required to resolve the issue of consolidation
between this matter and Sampson, and for Defendants’ argument regarding Plaintiff’s
adequacy as a class representative to be tested at the class certification hearing with the
other Rule 23(a) factors. Given the above circumstances, delay of the determination of
whether Plaintiff is an adequate class representative does not present the type of

9

“compelling reasons” that justify denial of Plaintiff’s motion for leave to amend. See
Reuter, 711 F.3d at 922 (citation omitted).
D. Consolidation
Finally, Defendants ask that if the Court grants Plaintiff’s motion for leave to
amend, the Court consolidate this matter with Sampson under the principles of the first-tofile rule and for purposes of judicial economy. The first-to-file rule is used typically “for
purposes of choosing among possible venues when parallel litigation has been instituted in
different courts.” Nw. Airlines, Inc. v. Am. Airlines, Inc., 989 F.2d 1002, 1006 (8th Cir.
1993). It is most often used to conserve judicial resources and avoid conflicting rulings. Id.
It gives priority to the party who first establishes jurisdiction. Id.
The first-to-file rule does not apply here because both this case and Sampson have
been filed in the same district and are assigned to the same judge. See Artic Cat v. Polaris
Industries, Inc., Civil Nos. 13-3579 & 13-3595, 2014 WL 5325361 *15 (D. Minn. Oct. 20,
2014) (declining to apply rule in similar circumstances). The reasons that the first-to-file
rule does not apply here are relatively straightforward; the same judge is not likely to issue
conflicting rulings in the two cases. Woodards v. Chipotle Mexican Grill, Inc., No. 14-cv4181, 2015 WL 3447438 *10, (D. Minn. May 28, 2015). That judge will also have a wide
variety of procedural tools at his or her disposal to consolidate or coordinate the two actions
as appropriate. See Artic Cat, 2014 WL 5325361 at *15.
Defendants contend that the “essential distinguishing factor” between this matter
and Artic Cat is the fact that both this matter and Sampson are class actions. But other
courts have declined to apply the first-to-file rule to consolidate class actions so long as
10

those actions were filed in the same district and assigned to the same judge. See Woodards,
No. 14-cv-4181, 2015 WL 3447438 *7-*10, (D. Minn. May 28, 2015). The Court has been
presented with no compelling reason to treat this matter any differently.
Likewise, judicial economy is not best served by consolidating this matter with
Sampson through this order. As the Court has previously noted, following a Rule 42
motion, the Court may conclude that it is appropriate for this case and Sampson to be
consolidated or otherwise coordinated. To do so at this point, however, would not be
appropriate when the parties in Sampson have not been given the opportunity to be heard
on this issue. Given the Court’s ruling on Plaintiff’s motion for leave to amend, the Court
urges the parties in both this case and Sampson to meet and confer and see if a resolution
can be reached regarding the consolidation or coordination of these two matters. Of course,
if no agreement can be reached, then any party is free to bring a motion arguing for the
coordination and consolidation of the two matters.
III.

MOTION FOR PROTECTIVE ORDER
A. Legal Standard
Rule 26 permits parties to “obtain discovery regarding any nonprivileged matter that

is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed.
R. Civ. P. 26(b)(1). To determine whether the discovery requested is proportional to the
needs of the case, courts consider “the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely benefit.” Id. Even when the
11

discovery is relevant, it “is not permitted where no need is shown, or compliance would be
unduly burdensome, or where harm to the person from whom discovery is sought
outweighs the need of the person seeking discovery of the information.” Miscellaneous
Docket Matter No. 1 v. Miscellaneous Docket Matter No. 2, 197 F.3d 922, 925 (8th Cir.
1999) (quoting Micro Motion, Inc. v. Kane Steel Co., 894 F.2d 1318, 1323 (Fed. Cir.
1990)). Under Rule 26(c)(1), the Court “may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment, oppression, or undue burden or expense”
due to a discovery request. Fed. R. Civ. P. 26(c)(1). “Good cause” can be satisfied by a
showing of irrelevancy. Smith v. Dowson, 158 F.R.D. 138, 140 (D. Minn. 1994).
Fifth Third seeks a protective order regarding the following interrogatories, requests
for admission, and requests for production that Plaintiff served on June 13, 2018:
-

-

Interrogatory No. 11: Identify and explain the BANK’s policy and procedure for
sending a written notice to Minnesota customers when the BANK has accepted late
or partial payments from that Minnesota customer and then is warning those
customers that failure to make the arrearage payments by a date specific may result
in repossession of the collateral.

-

4

Interrogatory No. 10: Identify and explain the BANK’s 4 policy and procedure for
sending a written strict compliance notice to Minnesota customers when the BANK
has accepted late or partial payments from that Minnesota customer and then is
warning those customers that no such future late or partial payments will be
tolerated.

Interrogatory No. 13: Have any guidelines or procedures identified in your
preceding answers to interrogatories been modified in any way since the occurrence
of the facts and circumstances as alleged in the Complaint? If so, describe in detail
all such modifications, provide the dates upon which such modifications were made,
identify the individuals authorizing such modification, and provide the reasons
therefore.

All references to “BANK” refer to Fifth Third.

12

-

Interrogatory No. 14: Identify and explain the BANK’s policies and procedures,
if any, for phone conversation [(sic)] with borrowers who are delinquent on vehicle
loans

-

Interrogatory No. 15: Identify and explain the BANK’s policies and procedures,
if any, for entering into credit accommodation agreements, forbearance agreements,
or other arrangements to delay repossession in exchange for promises of future loan
payments.

-

Interrogatory No. 18: From January 11, 2017 through the present date, identify
how many borrowers had their vehicles repossessed in Minnesota.

-

Interrogatory No. 19: From January 11, 2014 through the present date, identify
how many borrowers had their vehicles repossessed in Minnesota.

-

Interrogatory No. 20: With regard to the repossession [(sic)] identified in the
previous Interrogatory, identify whether or not Defendant BANK sent the borrower
a Cobb Notice prior to the repossession.

-

Interrogatory No. 21: Identify and describe all complaints, lawsuits, regulatory
investigations or communications to Defendant BANK concerning alleged
“wrongful repossession” from January 1, 2014 to the present.

-

Interrogatory No. 22: Identify all BANK memos, emails, policies or other writings
or communications that refer to Minnesota law, Minnesota regulations, strict
compliance notices, or Cobb Notices.

-

Request for Admission No. 11: Admit that within the past year, Defendant BANK
has repossessed over 40 vehicles from Minnesota customers.

-

Request for Admission No. 12: Admit that between January 1, 2014 through
January 11, 2018, Defendant BANK did not have a policy or procedure for sending
Cobb Notices.

-

Request for Admission No. 13: Admit that between January 1, 2014 through
January 11, 2018, Defendant BANK did not have a policy or procedure for notifying
borrowers in writing that strict compliance with the terms their loan or contract is
required.

-

Request for Production No. 9: From January 2016 through the present date, all
procedural and policy manuals in existence and in the possession or control of
Defendant BANK which relate to the following:
13

a. Collection/Repossession of delinquent accounts;
b. Creation and documentation of accommodation or forbearance on
repossession arrangements or agreements with borrowers;
c. Mailing of notices related to strict compliance with original contract terms,
account arrearages, delinquent payment history, repossession remedies,
and/or Cobb notices as described herein;
d. Handling payments on account after the account has been designated or
referred to collection/repossession;
e. Assigning
accounts
collection/repossession;

to

outside

collection

contractors

for

f. Issuing notices of sales of the collateral subject to the security agreements;
and
g. Any other procedures which relate to the subject matter.
-

Request for Production No. 12: Any and all policies referencing Minnesota law,
Cobb Notices, and/or notices concerning strict compliance with contract or loan
terms.

Fifth Third argues that a protective order should issue for two reasons. First, it contends
that any request related to Plaintiff’s putative class actions claims is irrelevant and
disproportional to the needs of this lawsuit because Plaintiff has only filed an individual
claim. Second, Fifth Third argues that discovery related to its internal policies and
procedures is also not relevant and disproportional to the needs of this lawsuit because
Fifth Third’s internal policies and procedures are not relevant to any standard of conduct
at issue in this case.
At the October 30 motion hearing, this Court ordered the parties to submit
supplemental briefs addressing what discovery requests related to Plaintiff’s individual
claims and what requests related to Plaintiff’s putative class action claims. In response,
14

Plaintiff identified the following discovery requests as related to her individual claims:
interrogatories 10 through 17, 21, and 22, requests for admission 11 through 13, and
requests for production 9 through 13. 5 Fifth Third argued that Plaintiff was only entitled to
her “loan file” regarding her individual claims.
The Court concludes that of the discovery requests that are the subject of Fifth
Third’s motion for protective order, the following relate to Plaintiff’s putative class action
claims: interrogatories 18, 19, and 20, and request for admission 11. Each of those requests
seeks information related to the number of other people whose vehicle Fifth Third
repossessed or information regarding the type of notification that each of those people
received before their vehicles were repossessed. Information responsive to these requests
would not be relevant to the merits of Plaintiff’s own claim, but would be relevant to issues
such numerosity, typicality, and commonality, which Plaintiff would be required to address
in a motion for class certification. See Fed. R. Civ. P. 23(a).
B. Class Action Discovery
Because the Court has granted Plaintiff’s motion for leave to amend her complaint,
the Court also concludes that Plaintiff’s discovery requests that relate to her putative class
action claims are relevant and proportional to the scope of her lawsuit. The Court will
therefore deny Fifth Third’s motion for a protective order regarding interrogatories 18, 19,
and 20, and request for admission 11. The Court will, however, stay discovery on these
requests. This Court may stay proceedings when necessary “to control the disposition of

5

Because Fifth Third does not seek a protective order regarding interrogatories 12, 16, and 17 or requests for
production 10, 11, and 13, the Court does not address whether a protective order is appropriate for those requests.

15

the causes on its docket with economy of time and effort for itself, for counsel, and for
litigants.” Cottrell v. Duke, 737 F.3d 1238, 1248 (8th Cir. 2013).
Here, a stay is appropriate because of the pending motions to dismiss before the
District Judge and the possibility that Defendants will move to consolidate this matter with
Sampson. In Sampson the parties have not yet filed their Rule 26(f) report. See Fed. R. Civ.
P. 26(d)(1) (permitting discovery to go forward only after Rule 26(f) conference). The
parties in Sampson will also not have their pre-trial conference with this Court until after
the motions to dismiss are decided. (ECF No. 18 in Sampson, No. 18-cv-1622). A stay will
ensure that class-related discovery in this matter does not outpace the class discovery
efforts that will be required in Sampson. A stay also ensures that Defendants will not be
prejudiced by duplicative class discovery.
In addition, a stay on class-related discovery is not likely to delay this matter
significantly. For reasons discussed below, Plaintiff will be able to continue pursuing
discovery that is relevant to the merits of her individual claim. Her individual discovery is
also likely to be relevant to the merits of her class claims. The Court will therefore order
that discovery related to Plaintiff’s interrogatories 18, 19, and 20, and request for admission
11 be stayed until the District Judge has decided Defendants’ motions to dismiss.
C. Individual Discovery
The remaining discovery requests that are at issue here, interrogatories 10, 11, and
13 through 15, requests for admission 12 and 13, and requests for production 9 and 12,
relate to Fifth Third’s policies and procedures for communicating with customers regarding
repossession, lawsuits related to the repossession of vehicles, and information related to
16

Minnesota law governing the repossession of vehicles. Fifth Third contends that a
protective order is appropriate here because its internal policies and procedures are not
relevant to any standard of conduct at issue in this case.
It is true that a company’s internal policies and procedures do not create specific
enforceable rights and thus cannot be relied on to create a standard of care. See, e.g. Bohn
v. Nw. Airlines, Inc., 435 N.W.2d 612, 615 (Minn. App. 1989). But Fifth Third’s argument
relates more to the admissibility of the information that Plaintiff seeks at trial, rather than
the discoverability of that evidence. Rule 26(b) is “widely recognized as a discovery rule
which is liberal in scope and interpretation, extending to those matters which are relevant
and reasonably calculated to lead to the discovery of admissible evidence.” Hofer v. Mack
Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992). The lone fact that the information sought
through discovery may not be admissible as evidence at trial is no grounds for objection to
discovery. Id.
Here, Fifth Third’s argument presumes that Plaintiff’s “theory of liability . . . is
essentially one for strict liability.” Fifth Third indicates that the ultimate issue that will
determine liability in this litigation is whether Minnesota law required Fifth Third to send
Plaintiff a Cobb notice before repossessing her vehicle. Resolution of this issue may turn
purely on the District Judge’s legal interpretation of various Minnesota statutes that govern
a secured party’s right to take possession of property after default. The discovery that
Plaintiff seeks would not be relevant to that determination.
But Fifth Third also contends that, if Minnesota law requires that a Cobb notice be
provided, the Court will also be required to determine whether Fifth Third provided
17

Plaintiff actual and sufficient notice before repossessing her vehicle. That issue presents,
as Fifth Third concedes, a factual question. Undoubtedly, information related to Fifth
Third’s internal policies and procedures, including lawsuits related to those policies and
procedures would be relevant and reasonably likely to lead the discovery admissible
evidence related to the factual question of what constitutes a sufficient Cobb notice. See
Edeh v. Equifax Info. Services, LLC, No. 11-cv-2671, 2013 WL 1799006 *2, (D. Minn.
Apr. 29, 2013) (permitting discovery into prior lawsuits). In any event, it is not certain that
the information that Plaintiff seeks would even be inadmissible at trial. The “admission of
industry . . . and of private codes adopted by an employer” is favored, even when those
codes do not have the force of law. Brown v. Cedar Rapids & Iowa City Ry. Co., 650 F.2d
159, 163 (8th Cir. 1981). Accordingly, the Court declines to grant Fifth Third’s motion for
a protective order for interrogatories 10, 11, and 13 through 15, requests for admission 12
and 13, and requests for production 9 and 12. 6 It may well be that Fifth Third will be
permitted to file a motion in limine at the appropriate time governing the use of that
discovery at trial. But that decision is for another day.
IV.

CONCLUSION
Therefore, based upon the record, memoranda, and proceedings herein, IT IS

HEREBY ORDERED as follows:
1. Plaintiff’s Motion for Leave to File Amended Complaint (ECF No. 45) is
GRANTED. Plaintiff shall file her Amended Complaint within seven days of this Order.
6

The Court also notes that Fifth Third spent substantial time arguing in its supplemental brief that it is entitled to
substantial discovery if the Court grants Plaintiff’s motion for leave to amend. Because Fifth Third has not filed a
motion to compel here, the Court declines to address this argument.

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2. Defendant Fifth Third Bank’s Motion for Protective Order (ECF No. 31) is
DENIED.
3. All discovery related to Interrogatories 18, 19, and 20, and Request for Admission
11 of Plaintiff’s First Set of Interrogatories, Requests for Admissions with Interrogatory,
Requests For Production of Documents, and Requests for Productions of Statements to
Defendant Fifth Third Bank is STAYED until the Motions for Judgment on the Pleadings
(ECF Nos. 87 and 92) are decided in this matter.
4. All prior consistent orders remain in full force and effect.
5. Failure to comply with any provision of this Order or any other prior consistent
order shall subject the non-complying party, non-complying counsel and/or the party such
counsel represents to any and all appropriate remedies, sanctions and the like, including
without limitation: assessment of costs, fines and attorneys’ fees and disbursements; waiver
of rights to object; exclusion or limitation of witnesses, testimony, exhibits, and other
evidence; striking of pleadings; complete or partial dismissal with prejudice; entry of whole
or partial default judgment; and/or any other relief that this Court may from time to time
deem appropriate.

Date: November 27, 2018

s/ Tony N. Leung
Tony N. Leung
United States Magistrate Judge
District of Minnesota
Hendrickson v. Fifth Third Bank et al.
Case No. 18-cv-86 (WMW/TNL)

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