Pettibone v. TJX Companies, Inc. et al

Filing 76

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff Wells Pettibone and Defendant TJX Companies, Inc. shall confer by phone or in person regarding these remaining discovery issues. IT IS FURTHER ORDERED that Plaintiff Wells Pettibone shall file a reply brief indicating the remaining discovery disputes, if any, on or before June 10, 2019. Signed by Magistrate Judge Noelle C. Collins on 6/4/2019. (AFC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

WELLS PETTIBONE,
Plaintiff,
v.
TJX COMPANIES, INC.,
Defendant.

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Case No. 2:18-CV-00025-NCC

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Wells Pettibone’s third Motion to Compel
(Doc. 73). Defendant TJX Companies, Inc. responded to the motion (Doc. 75). Plaintiff did not
file a reply in support of his motion and the time to do so has elapsed. E.D. Mo. L.R. 4.01. For
the following reasons, the Court will direct Plaintiff to file a reply brief after further conference
with Defendant.
I. Background
On March 2, 2018, Plaintiff Wells Pettibone’s (“Plaintiff”) filed this action in the Circuit
Court of Marion County, Missouri against Defendant TJX Companies, Inc. (“TJ Maxx”) and
Zurich American Insurance Co. for negligence (Count I) and products liability (Count II) (Doc.
6).1 Plaintiff alleges that he suffered injury on September 22, 2017, when a French coffee press
he purchased at TJ Maxx “failed and exploded” (Id. at 2). The French coffee press has been

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Defendant Zurich American Insurance Co. was voluntarily dismissed from this action in
the state court prior to the matter’s removal to this Court (Doc. 7).

subsequently identified by the parties as a Masterclass Oak Handle 6-Cup Coffee Press2
(hereinafter the “Product”) (See Doc. 50 at 1, Doc. 66 at 2). On April 10, 2018, Defendant TJ
Maxx timely removed this action to this Court on the basis of diversity jurisdiction (Doc. 1).
The undersigned entered a case management order on May 9, 2018, which included a close of
discovery deadline of February 1, 2019 (Doc. 16). On July 10, 2018, Plaintiff moved for leave to
file an amended complaint in order to clarify at which TJ Maxx store he purchased the Product
(Doc. 17). Over Defendant’s objections, the Court granted the Motion and afforded Plaintiff the
opportunity to file an amended complaint (Doc. 21). On July 31, 2018, Plaintiff filed his first
amended complaint and also filed a second Motion to Amend his Complaint (Docs. 22, 23). In
his second Motion, Plaintiff sought to amend his complaint to clarify Count II (Doc. 23).
Specifically, Plaintiff updated his Count II heading from “Products Liability” to “Products
Liability – Strict Liability” and changed the word “negligence” in paragraph 40 to “conduct”
(Id.). The Court again granted Plaintiff leave to file his Second Amended Complaint (Doc. 28).
Upon Plaintiff’s motion and over the objections of Defendant, the case management order was
subsequently amended, and the undersigned entered a third amended case management order on
March 19, 2019 (Doc. 55). In that order, the Court set a deadline of March 29, 2019 for the close
of discovery (Id.). On April 11, 2019, the Court denied Plaintiff’s Motion for Leave to File
Third Amended Complaint (Doc. 65). Therefore, Plaintiff’s Second Amended Complaint is the
operative pleading in this matter.
In conjunction with Plaintiff’s request to amend the case management order (Doc. 52), on

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The parties previously identified the coffee press as Style # 1000406445 but, here,
Plaintiff indicates that the coffee press could be Style # 1000406445, Style #1000406444, or
another similar oak handle coffee press. See Doc. 74 at 1, n.1.
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March 8, 2019, Plaintiff filed a Motion to Compel requesting an order compelling Defendant to
answer each of Plaintiff’s First Interrogatories and to respond to each of Plaintiff’s First Request
for Production of Documents (Doc. 50). The Court granted Plaintiff’s motion in part and denied
it in part as moot (Doc. 67). In that order, the Court directed the parties to file an Amended Joint
Proposed Scheduling Plan which the parties timely filed on April 19, 2019 (Docs. 67, 68). On
April 23, 2019, the Court entered its Fourth Amended Case Management Order and set a
discovery completion deadline of April 30, 2019 and a deadline for dispositive motions of May
15, 2019 (Doc. 69). This matter remains set for trial on September 30, 2019 (Id.).
On May 3, 2019, Plaintiff filed a second Motion to Compel but failed to properly certify
that the parties conferred in good faith and the Court denied it as such without prejudice (Doc.
72). On May 10, 2019, after a telephone conference between the parties to address the issues
raised in the second Motion to Compel, Plaintiff filed his third Motion to Compel (Doc. 73). In
his Motion, Plaintiff indicates that he seeks the production of documents from Defendant
regarding: (1) instructions for use or care for the Product provided by the manufacturer; (2)
notes, records, or files in any way related to kind of due diligence, investigation, or inquiry made
by Defendant regarding the Product between 2013 and present; (3) notes, messages, records, or
files relating in any way to communications between Defendant and HH Asia LTD regarding the
Product; (4) notes or records of communication, including phone records, between employees or
agents of the TJX Companies regarding the Product; and (5) portions of the Defendant’s “elibrary” related to the distribution, care, inspection and/or shelving of French presses or glass
kitchen wares in general at The TJX Companies, Inc.’s retail stores (Doc. 74 at 2). These
requests encompass the entirety of Plaintiff’s Second Request for Production sent to Defendant

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on March 27, 2019 (Doc. 74-1). Defendant responded to Plaintiff’s Second Request for
Production, raising a number of objections regarding each request (Doc. 74-2). The parties have
reached an agreement with respect to Second Request for Production No. 1 (Doc. 75 at 1).
Therefore, the Court will address the remaining discovery issues.
II. Analysis
Federal Rule of Civil Procedure 26(b)(1) provides for the discovery of any nonprivileged
matter that is relevant to any party’s claim or defense and proportional to the needs of the case.
“Relevancy is to be broadly construed and encompass[es] ‘any matter that could bear on, or that
reasonably could lead to other matter that could bear on, any issue that is or may be in the case.’”
E.E.O.C. v. Woodmen of the World Life Ins. Society, 2007 WL 1217919 at *1 (D. Neb. March
15, 2007) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). To that end,
discovery need not be admissible at trial. Fed. R. Civ. P. 26(b)(1). However, Plaintiff, as the
moving party, “bear[s] the initial burden of showing that the requested discovery is discoverable
within the meaning of Rule 26.” Bates v. Delmar Gardens N., Inc., No. 4:15-CV-00783-AGF,
2016 WL 3543046, at *4 (E.D. Mo. June 29, 2016). “[A]fter the proponent of discovery makes a
threshold showing of relevance, the party opposing a motion to compel has the burden of
showing its objections are valid by providing specific explanations or factual support as to how
each discovery request is improper.” Cincinnati Ins. Co. v. Fine Home Managers, Inc., No.
4:09CV234–DJS, 2010 WL 2990118, at *1 (E.D. Mo. July 27, 2010). “The management of
discovery is committed to the sound discretion of the trial court.” In re Missouri Dep’t of Nat.
Res., 105 F.3d 434, 435 (8th Cir. 1997) (citing Bunting v. Sea Ray, Inc., 99 F.3d 887, 890 (8th
Cir. 1996)).

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Upon review of the remaining discovery issues, the Court finds Plaintiff’s requests, while
related to the subject matter and therefore relevant, to be overly broad and not proportional to the
needs of the case. Defendant has made a number of sensible recommendations to narrow the
scope of production that the Court urges the parties consider. For example, the Court finds it
reasonable to limit many of the requests to a time “prior to procurement” or to matters regarding
the selection of the Product. Given these common-sense recommendations on the part of
Defendant and Plaintiff’s failure to file a reply brief, the Court has considered the possibility that
the parties may have reached some agreement without needing a third intervention from the
Court. Regardless, even if this is not the case, with the limited guidance contained herein, the
Court is hopeful that upon further conference the parties will resolve this matter amicably and
efficiently.
III. Conclusion
Accordingly,
IT IS HEREBY ORDERED that Plaintiff Wells Pettibone and Defendant TJX
Companies, Inc. shall confer by phone or in person regarding these remaining discovery issues.
IT IS FURTHER ORDERED that Plaintiff Wells Pettibone shall file a reply brief
indicating the remaining discovery disputes, if any, on or before June 10, 2019.
Dated this 4th day of June, 2019.

/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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