Graves v. Deluxe Corporation

Filing 38

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant Deluxe Corporation's Motion for Summary Judgment (ECF No. 10) and Plaintiffs Motion to Strike Declaration of Guy Becker and Incorporated Memorandum in Support (ECF No. 20) are DENIED without prejudice. Once Deluxe has answered the Catlin Complaint, then the Court will schedule a Rule 16 conference and enter a Case Management Order, which will provide the date when the parties may file dispositive motions, if necessary. IT IS F URTHER ORDERED that Plaintiffs Rule 56(d) Motion and Incorporated Memorandum to Open Discovery, Take the Deposition of Defendant's Compliance Officer George Lawton, and Stay the Court's Ruling on Defendant's Motion for Summary Judgme nt (ECF No. 28) is GRANTED. The Clerk of the Court shall reassign Calin v. Deluxe Corporation, 4: 15cv522 to this Court for full disposition. The Clerk shall docket a copy of this Memorandum and Order in both the Catlin Action and the Graves Action. IT IS FURTHER ORDERED that the parties shall file any future filings in the Graves Action, which is the lower case number. IT IS FINALLY ORDERED that Plaintiffs Motion to Consolidate Cases (ECF No. 31) is GRANTED. Signed by District Judge Ronnie L. White on April 27, 2015. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JENNIFER GRAVES,
Plaintiff,
V.

DELUXE CORPORATION,
Defendant.

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No. 4:14-CV-1823 RLW

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MEMORANDUM AND ORDER

This matter is before the Court on the Defendant Deluxe Corporation' s Motion for
Summary Judgment (ECF No. 10), Plaintiffs Motion to Strike Declaration of Guy Becker and
Incorporated Memorandum in Support (ECF No. 20), Plaintiffs Rule 56(d) Motion and
Incorporated Memorandum to Open Discovery, Take the Deposition of Defendant's Compliance
Officer George Lawton, and Stay the Court' s Ruling on Defendant' s Motion for Summary
Judgment (ECF No. 28), and Plaintiffs Motion to Consolidate Cases (ECF No. 31).

These

matters are fully briefed and ready for disposition.
BACKGROUND

Plaintiff Jennifer Graves ("Graves") alleges that she purchased checks from Deluxe
Corporation ("Deluxe") for personal, family or household purposes and was illegally
overcharged a fee for delivery. (Petition, ECF No. 3, i!30).
On September 24, 2014, Graves filed a Petition against Deluxe (hereinafter, the "Graves
Action"). Graves ' Petition alleges three claims: Count I for violation of the Missouri
Merchandising Practices Act ("MMP A"); Count II for money had and received; and Count III
for unjust enrichment. On October 28, 2014, Deluxe removed this action to this Court. (ECF

No. 1). On November 26, 2014, Deluxe filed its Answer and Affirmative Defenses to Graves'
Petition. (ECF No. 9) Shortly thereafter, on December 3, 2014, Deluxe filed its motion for
summary judgment as to all of Graves ' claims. (ECF No. 10). Deluxe' s motion for summary
judgment is fully briefed.
On March 24, 2015, Kay Catlin ("Catlin") filed a nationwide class action Complaint
(except for Missouri) against Deluxe, which alleges claims under the Illinois Consumer Fraud
Act, 815 ILCS 505/1 et seq. ("ICFA") and consumer protection statutes of other states (Count I)
and for unjust enrichment (Count II). See Catlin v. Deluxe Corporation, 4: 15cv522 (hereinafter
the "Catlin Action").
On March 25, 2015, Plaintiffs Graves and Catlin filed a motion to consolidate both cases
(ECF No. 31 ).

DISCUSSION
I.

Motion for Discovery under Fed.R.Civ.P. 56(d)

Fed.R.Civ.P. 56(d) provides the procedure for a nonmovant who is unable to "present facts
essential to justify its opposition." In Graves ' Rule 56(d) motion, she seeks leave to take the
deposition of Deluxe' s compliance officer, George Lawton, who was the chair of the Direct
Marketing Association (DMA) Ethics Policy Committee in 2014. Graves asks the Court to grant
her Rule 56(d) motion to allow her to take the deposition of Mr. Lawton to determine the basis of
the DMA Ethical Guidelines which prohibit direct marketers from profiting on delivery charges.
(ECF No. 28 at 3). Graves argues that the MMPA' s prohibition against unfair practices in
Mo.Rev.Stat. §407.020.11 and the Attorney General' s regulation on unfair practices2 imposed a

1

Mo.Rev.Stat. §407.020.1 provides "The act, use or employment by any person of any
deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the
concealment, suppression, or omission of any material fact in connection with the sale or
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duty on Deluxe to act ethically.

Graves further contends that the DMA Ethical Guidelines

support the conclusion that Deluxe breached its duty to act ethically by defining those ethical
practices. Graves maintains that she should be permitted to conduct discovery related to that
ethical obligation and duty.
In response, Deluxe argues that Graves ' Rule 56(d) motion is untimely because Deluxe's
Motion for Summary Judgment is fully briefed and Graves previously stated that "there is no
need for Plaintiff to take discovery." (ECF No. 29 at 1 (citing ECF No. 18 at 9)). Deluxe also
contends that the proposed discovery would have no bearing on the legal basis of Deluxe's
motion for summary judgment. (ECF No. 29 at 2). Specifically, Deluxe maintains that the
DMA Guidelines cannot create a legally enforceable duty which can be used to bootstrap a claim
against Deluxe under the MMP A.
The Court grants Graves' Rule 56(d) motion and will allow Graves to conduct discovery
relevant to her claims. The Court finds that, at this early stage of litigation, Graves should be
permitted to investigate the duty to act ethically and the possible basis of this ethical obligation
in the DMA Ethical Guidelines and other areas. Although it would have been preferable for
advertisement of any merchandise in trade or commerce or the solicitation of any funds for any
charitable purpose, as defined in section 407.453, in or from the state of Missouri, is declared to
be an unlawful practice. The use by any person, in connection with the sale or advertisement of
any merchandise in trade or commerce or the solicitation of any funds for any charitable purpose,
as defined in section 407.453, in or from the state of Missouri of the fact that the attorney general
has approved any filing required by this chapter as the approval, sanction or endorsement of any
activity, project or action of such person, is declared to be an unlawful practice. Any act, use or
employment declared unlawful by this subsection violates this subsection whether committed
before, during or after the sale, advertisement or solicitation."
2
15 CSR 60-8.020 provides:
(1) An unfair practice is any practice which(A) Either1. Offends any public policy as it has been established by the Constitution, statutes or common law
of this state, or by the Federal Trade Commission, or its interpretive decisions; or
2. Is unethical, oppressive or unscrupulous; and
(B) Presents a risk of, or causes, substantial injury to consumers

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Graves to have filed this motion prior to completing briefing on the Motion for Summary
Judgment, the Court believes that a greater prejudice would be to rule on the Motion for
Summary Judgment at this extremely early stage of litigation.
II.

Motion to Consolidate

Fed.R.Civ.P. 42(a) provides that the Court can consolidate actions " [w]hen actions involving
a common question of law or fact are pending before the Court .. .. " Plaintiffs Graves and Catlin
(collectively, "Plaintiffs") argue that the Graves Action and Catlin Action involve common
questions of law and fact because all of the violations alleged in the Graves Action are also
alleged in the Catlin Action. (ECF No. 31 , if5). Plaintiffs anticipate that discovery issues will be
the same and that many of the same witnesses will testify in both cases. (ECF No. 31 , if6).
Likewise, Plaintiffs allege that common legal issues exist between the two cases because the
MMP A, the ICF A, and the other relevant state consumer statues all outlaw unfair practices.
(ECF No. 31 , if7).
In response, Deluxe contends that Plaintiffs' Motion to Consolidate is premature because
Deluxe has not answered the Complaint in the Catlin Action. (ECF No. 33 at 3-4). Second,
Deluxe argues the Plaintiffs Motion to Consolidate is premature because there is a pending
Motion for Summary Judgment in the Graves Action which would moot the motion to
consolidate. (ECF No. 33 at 4).
Because the Court is denying Deluxe' s Motion for Summary Judgment without prejudice and
granting Plaintiffs Rule 56(d) motion for discovery, the Court finds that Deluxe' s reasons for
opposing consolidation of these cases are no longer applicable. The Court, therefore, grants
Plaintiffs Motion to Consolidate.

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III.

Motion for Summary Judgment

Because the Court is allowing Graves to conduct discovery and because the Court is
consolidating the Graves and Catlin Actions, the Court will deny Deluxe' s Motion for Summary
Judgment, without prejudice. Deluxe will have an opportunity to refile its Motion for Summary
Judgment after Plaintiffs conduct discovery and in accordance with a case management order to
be entered by the Court.
Accordingly,
IT IS HEREBY ORDERED that Defendant Deluxe Corporation's Motion for Summary
Judgment (ECF No. 10) and Plaintiffs Motion to Strike Declaration of Guy Becker and
Incorporated Memorandum in Support (ECF No. 20) are DENIED without prejudice. Once
Deluxe has answered the Catlin Complaint, then the Court will schedule a Rule 16 conference
and enter a Case Management Order, which will provide the date when the parties may file
dispositive motions, if necessary.
IT IS FURTHER ORDERED that Plaintiffs Rule 56(d) Motion and Incorporated
Memorandum to Open Discovery, Take the Deposition of Defendant's Compliance Officer
George Lawton, and Stay the Court's Ruling on Defendant's Motion for Summary Judgment
(ECF No. 28) is GRANTED.

The Clerk of the Court shall reassign Calin v. Deluxe

Corporation, 4: 15cv522 to this Court for full disposition. The Clerk shall docket a copy of this
Memorandum and Order in both the Catlin Action and the Graves Action.
IT IS FURTHER ORDERED that the parties shall file any future filings in the Graves
Action, which is the lower case number.

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IT IS FINALLY ORDERED that Plaintiffs Motion to Consolidate Cases (ECF No. 31)
is GRANTED.
Dated this 27th day of April, 2015.

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RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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