Toben, et al. v. Bridgestone Retail Operations, LLC

Filing 36

MEMORANDUM AND ORDER: For the reasons set forth above, IT IS HEREBY ORDERED that plaintiff's motion to compel [Doc. # 32 ] isdenied.. Signed by District Judge Carol E. Jackson on 3/4/13. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PATRICIA TOBEN,
Plaintiff,
vs.
BRIDGESTONE RETAIL OPERATIONS,
LLC., d/b/a FIRESTONE COMPLETE
AUTO CARE,
Defendant.

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Case No. 4:11-CV-1834 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the motion of plaintiff Patricia Toben to
compel discovery.

Defendant Bridgestone Retail Operations, LLC. has filed a

memorandum in opposition, and the issues have been fully briefed.
Plaintiff brings this action asserting a claim of violation of the Missouri
Merchandising Practices Act, Mo. Rev. Stat. § 407.025, and a claim of money had and
received. Plaintiff alleges that defendant committed an unfair or deceptive practice by
charging customers a “shop supplies fee” unrelated to the actual supplies provided.
She seeks certification of a class consisting of all Missouri citizens who were charged
a “shop supplies fee” by defendant at any of defendant’s stores in Missouri.
The parties are engaged in discovery relating to the issue of class certification.
On October 10, 2012, plaintiff propounded interrogatories and requests for production
on defendant, seeking information and documents relating to the cost of supplies
considered to be “shop supplies,” the revenue from the shop supplies fee, and the
profit generated from that fee. Defendant has objected to these requests. Plaintiff
now moves for this Court to overrule defendant’s objections to three of plaintiff’s
interrogatories and three of plaintiff’s request to produce.

Furthermore, plaintiff

requests that the Court issue an order requiring defendant produce supplemental
discovery in an organized format.
Interrogatories 13, 14, and 19
Interrogatory 13 asks defendant to state the aggregate amount of money
collected annually in the form of the fee. Interrogatory 14 asks defendant to state the
aggregate costs incurred by defendant annually for materials for which the fee was
charged.

Interrogatory 19 requests that defendant describe any records in its

possession from which one could determine the extent to which shop supplies were
actually used during specific vehicle repairs or services, and the cost of the supplies
used. All interrogatories are limited in scope to the discovery time period and the state
of Missouri.
Defendant objects to these interrogatories as premature insofar as they seek
information pertaining to the merits of the litigation as opposed to class certification
issues. Plaintiff responds that the “Class Discovery and Certification Case Management
Order” entered on September 14, 2012 [Doc. # 28]
discovery.

does not prohibit merits

Plaintiff further argues that the distinction between merits and class

discovery is “arbitrary” because the two are frequently intertwined and that the
information requested would show common questions of law or fact and is relevant to
the issue of class certification under Fed.R.Civ.P. 23.
The class discovery case management order was preceded by the submission
of a joint proposed scheduling plan in which the parties proposed a schedule for
“[d]iscovery related to class certification issues.” [Doc. # 26]. Thus, it was clearly the
intent of the Court and the parties to limit the initial phase of discovery to class
certification issues. The plaintiff’s contention that merits discovery is not foreclosed
by the case management order is disingenuous. At this stage of the litigation, the
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parties may conduct discovery to produce information relevant to class certification
issues only. “The scope of class certification discovery is determined by reference to
Rule 23 which requires that plaintiffs show (1) numerosity, (2) commonality, (3)
typicality, and (4) adequate representation. Accordingly, issues concerning the scope
of discovery and the relevance of plaintiffs’ individual production requests will be
evaluated under the parameters set forth in Rule 23.” Thompson v. Jiffy Lube Int’l,
Inc., No. 05-1203-WEB, 2006 WL 1174040, at *2 (D. Kan. May 1, 2006).
Defendant has already produced the formula used to calculate the shop supply
fee: 6% of the total labor amount, not to exceed $25. Defendant admits that the fee
is not directly tied to supplies used on particular cars, and that part of the fee goes not
to supplies, but to profit. This is how the fee is calculated every time it is charged.
Plaintiff argues that she requires information on total revenue generated by the fee,
costs incurred in purchasing supplies, and how those supplies were used when
servicing specific cars, in order to deduce “the true character of the fee every time it
is charged.” But defendant has already openly disclosed “the true character of the
fee.” The information plaintiff seeks through the challenged interrogatories - revenue
generated from the fee and costs incurred - relates to potential damages in this case.
It will not supply plaintiff any additional guidance regarding commonality of factual and
legal issues among the class.
Requests for Production 17, 18, and 21
Request for Production 17 asks defendant to produce documents showing types
and amount of costs defendant incurred from shop supplies. Request 18 demands
documents showing the amount of revenue defendant received from charging
customers the fee. Request 21 asks defendant to produce documents pertaining to
the type of shop supplies covered by the fee, the quantity purchased per year of each
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shop supply, and the price paid by defendant per year for each type of supply. The
requests are limited in scope to the discovery time period and the state of Missouri.
Defendant objects to these requests as overly broad, unduly burdensome, and not
reasonably calculated to lead to the discovery of admissible evidence. Defendant
further objects to Request 21 as vague and ambiguous.
Plaintiff argues that these documents are relevant at the class certification stage
because they may show common issues of law or fact. Again, the Court disagrees.
The information plaintiff seeks is not probative on the issue of commonality.
Therefore, defendant’s objections will be sustained on the basis of relevance.
Supplemental Discovery
Defendant already agreed to produce the supplemental documents plaintiff
requested, and informed the Court that it produce these documents by February 28,
2013. Therefore, the order that plaintiff requests is unnecessary.
***
For the reasons set forth above,
IT IS HEREBY ORDERED that plaintiff’s motion to compel [Doc. #32] is
denied.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 4th day of March, 2013.

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