Sherrod v. Enigma Software Group USA, LLC

Filing 26

OPINION AND ORDER denying 24 Supplemental Motion for Discovery. Responses re 11 Motion for Summary Judgment due w/in twenty-one (21) days. Signed by Magistrate Judge Terence P Kemp on 12/19/2013. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Nicole A. Sherrod,

:

Plaintiff,

:

v.

:
:

Enigma Software Group, USA,
LLC,
Defendant.

Case No. 2:13-cv-36
JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

:
:

OPINION AND ORDER
This case is before the Court on a supplemental motion for
discovery pursuant to Fed. R. Civ. P. 56(d) filed by Plaintiff
Nicole A. Sherrod.

(Doc. #24).

For the reasons set forth below,

Ms. Sherrod’s motion will be denied.
I. Background
Ms. Sherrod filed a class action complaint against Defendant
Enigma Software Group USA, LLC (“Enigma”), asserting claims for
breach of contract, promissory estoppel, fraud, and
misrepresentation.

(Doc. #2).

Ms. Sherrod’s claims arise from

her purchase of virus removal software from Enigma.

More

specifically, Ms. Sherrod claims that, despite her cancellation
of the software subscription, Enigma improperly charged her
credit card for subscription renewal.
On June 18, 2013, Enigma filed a motion for summary judgment
on all claims in the complaint, arguing that its business records
disprove Ms. Sherrod’s allegations of unauthorized charges to her
credit card.

(Doc. #11).

Enigma states that its records:

unequivocally demonstrate that plaintiff purchased two
software subscriptions from Enigma at two separate times
for two different computers using two different credit
cards, but only cancelled one of those subscriptions and
allowed the other to renew under the terms of the

applicable license agreement.
(Doc. #11 at 1).

Enigma argues that its subscription management

vendor, Digital River, Inc. (“Digital River”), honored Ms.
Sherrod’s request to cancel one of her two subscription
agreements, and it renewed only the other subscription, which Ms.
Sherrod did not cancel.

Engima separately filed two declarations

in support of its motion for summary judgment.
The first declaration is from Thomas Beidle, the Group Vice
President, MyCommerce Operations for Digital River.

(Doc. #12).

Mr. Beidle explains that Digital River notifies Enigma customers
of subscription renewals, as well as processing Enigma’s customer
payments and cancellations.

The documents attached to Mr.

Beidle’s declaration include two separate invoices reflecting Ms.
Sherrod’s purchase of two subscriptions, a template that Ms.
Sherrod allegedly received for each subscription notifying her
that renewal of the subscription would occur if she took no
action, an e-mail log related to the first subscription, and
Digital River’s “How do I cancel my subscription” page which Mr.
Beidle swears was available to Ms. Sherrod.

Mr. Beidle avers

that “Digital River’s records do not reflect that Sherrod took
any action to cancel her First Subscription prior to its renewal
on October 10, 2012.”

Id. at 3.

Mr. Beidle states that, as a

result of Ms. Sherrod’s taking no action in response to the
notice, Digital River processed renewal of the first subscription
by charging Ms. Sherrod’s credit card $69.98, which is reflected
in the subscription status screens attached to the declaration.
Also attached to Mr. Beidle’s declaration are e-mail logs and
status screens for the second subscription, as well as a
notification of cancellation of that subscription, which Mr.
Beidle avers was prompted by Ms. Sherrod’s clicking on the
“cancel” link.

Mr. Beidle indicates that Digital River was not

informed of Ms. Sherrod’s request to cancel the automatic renewal
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of the first subscription until January 16, 2013, the date on
which it processed the cancellation and notified Ms. Sherrod of
it.
The second declaration in support of Enigma’s motion for
summary judgment is from Alessandro Malaspina, Enigma’s Vice
President, Technical Support, QA and Research.

(Doc. #13).

Attached to Mr. Malaspina’s declaration are, inter alia, a copy
of the relevant end user license agreement, a scan log for Ms.
Sherrod’s account, and transaction records for Ms. Sherrod’s
subscriptions.

Mr. Malaspina avers that Enigma never directly

charged any credit card belonging to Ms. Sherrod and that Digital
River made and processed any such charges on its behalf.
On July 22, 2013, Ms. Sherrod filed a motion for leave to
conduct discovery pursuant to Fed. R. Civ. P. 56(d), requesting
that the Court deny the motion for summary judgment, or defer
ruling on it, to allow her sufficient time to conduct discovery.
(Doc. #16).

The Court held a status conference on Ms. Sherrod’s

motion, during which the parties agreed to confer on the proper
scope of discovery for purposes of responding to summary
judgment.

On September 22, 2013, this Court issued an “agreed-on

order granting and part and denying in part plaintiff’s rule
56(d) motion for discovery.”

(Doc. #22).

The order, submitted

to the Court jointly by the parties, limited discovery as
follows:
a. plaintiff may propound the following requests for
production of documents pursuant to Fed. R. Civ. P. 34 to
the extent those requests call for non-privileged
documents in the possession, custody, or control of
Enigma:
Request for Production No. 1: All business records
of Enigma that concern Mr. Sherrod’s subscriptions
to Enigma software products.
Request for Production No. 2: All communications
and records of communication between Ms. Sherrod
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and Enigma.
Request for Production No. 3: All business records
of Digital River, Inc. that concern Ms. Sherrod’s
subscriptions to Enigma software products.
Request for Production No. 4: All communications
and records of communication between Ms. Sherrod
and Digital River, Inc.
b. plaintiff may take the deposition of Alessandro
Malaspina, Vice President, Technical Support, QA and
Research for Enigma, pursuant to Fed. R. Civ. P. 30, to
the extent that the deposition is limited to matters
concerning the pending summary judgment motion.
c. plaintiff may seek to take the deposition of Thomas
Beidle, Group Vice President, MyCommerce Operations for
Digital River, Inc. pursuant to Fed. R. Civ. P. 30 and
Fed. R. Civ. P. 45, to the extent that the deposition is
limited to matters concerning the pending summary
judgment motion.
Id. at 2.

The order also granted Ms. Sherrod leave to

seek additional discovery if warranted by the circumstances and
granted Enigma the opportunity to oppose Ms. Sherrod’s request.
The order likewise required the parties to serve initial
disclosures on one another.
On November 6, 2013, Ms. Sherrod filed the instant
supplemental motion to conduct discovery pursuant to Fed. R. Civ.
P. 56(d).

(Doc. # 24).

In the motion, Ms. Sherrod argues that

the discovery she has received is inadequate for purposes of
responding to Enigma’s summary judgment motion.

Id. at 1.

More

specifically, Ms. Sherrod seeks additional discovery concerning
“the business processes associated with consumer purchases and
cancellations of software subscriptions,” and claims that
“[t]hose processes establish an internal standard against which

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Defendant’s conduct can be measured in [this] case.”1

Id.

Ms.

Sherrod argues that information regarding Enigma’s internal
business policies and procedures concerning consumer software
subscriptions and credit or debit card purchases was “[n]otably
missing” from Enigma’s production.

Id. at 3.

She contends that

she consented to “the limitations in the Agreed Order under the
apparent misimpression that Defendant would produce” such
documents, but it did not.

Id.

Ms. Sherrod further argues that

the policy and procedure documents are crucial to understanding
how Enigma’s business process should work, and they “should
provide a ‘key’ to understanding the technical documents” that
Enigma produced.

Id.

Finally, Ms. Sherrod explains that,

although she had that opportunity to depose a defense witness and
representative of Digital River, “[s]he declined to do so”
because Engima’s “very limited document production rendered [her]
incapable of adequately preparing for those depositions.”

Id. at

4.
Enigma opposes Ms. Sherrod’s supplemental motion, arguing
that the parties agreed previously on the proper scope of the
Rule 56(d) discovery.

Engima explains that, consistent with that

agreement, it produced responsive documents comprised of its own
business records and Digital River’s business records which it
had in its possession.

Enigma states that Ms. Sherrod declined

to depose Mr. Malaspina, chose not to subpoena deposition
discovery from Mr. Beidle, and has yet to subpoena documents from
Digital River.

Enigma maintains that, despite Ms. Sherrod’s

1

In the supplemental motion to conduct discovery, Ms.
Sherrod argues that “a new discovery schedule will have to be set
if the Court permits [her] to amend her complaint to add Digital
River, Inc. as a defendant.” (Doc. #24 at 1). Although Ms.
Sherrod indicated her intent to seek leave to amend the complaint
to add Digital River as a defendant “no later than November 15,
2013,” she has not filed such a motion. Id.
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argument to the contrary, the agreed-upon discovery cannot be
interpreted to include the documents which Ms. Sherrod now seeks.
Enigma argues that “Plaintiff’s apparent dissatisfaction with the
results of the discovery she has taken – which results
demonstrate judgment should enter for Enigma – does not entitle
her to take more.”

(Doc. # 25 at 1-2).

Based on its argument

that Ms. Sherrod “has in no way established how additional
discovery would support her ability to respond to [its] summary
judgment motion,” Engima urges this Court to deny Ms. Sherrod’s
motion.

Id. at 2.
II. Discussion

Fed.R.Civ.P. 56(d) provides a mechanism to deal with motions
for summary judgment which are filed prior to the close of
discovery.

The rule, “When Facts Are Unavailable to the Movant,”

provides:
If a nonmovant shows by affidavit or declaration that,
for specified reasons, it cannot present facts essential
to justify its opposition, the court may:
(1)
(2)
(3)

defer considering the motion or deny it;
allow time to obtain affidavits or
declarations or to take discovery; or
issue any other appropriate order.

Fed. R. Civ. P. 56(d).

A party seeking discovery pursuant to

Rule 56(d) bears the burden of demonstrating why the discovery is
necessary to formulate an opposition to the summary judgment
motion.

See Summers v. Leis, 368 F.3d 881, 887 (6th Cir. 2004).

“Bare allegations or vague assertions of the need for discovery
are not enough” to justify granting a Rule 56(d) motion.

Id.

(citing United States v. Cantrell, 92 F. Supp. 2d 704, 717 (S.D.
Ohio 2000).

A court’s decision on a Rule 56(d) motion is

reviewed under an abuse of discretion standard.

See CareToLive

v. Food and Drug Admin., 631 F.3d 336, 345 (6th Cir. 2011).
In her supplemental motion, Ms. Sherrod fails to satisfy her
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burden of demonstrating why the discovery is necessary to
formulate an opposition to the summary judgment motion. As noted
by Enigma, Ms. Sherrod agreed to the scope of discovery necessary
to respond to the summary judgment motion, and her belief that
documents pertaining to Engima’s business processes would have
been included in that discovery is not substantiated by the
language in the agreed-on order.

Ms. Sherrod’s vague assertion

that documents explaining Enigma’s business processes would
“establish an internal standard against which Defendant’s conduct
can be measured” fails to “state with some precision” how she
expects those documents would help her to oppose summary
judgment.

See Summers, 368 F.3d at 887 (internal quotation

omitted).
In her affidavit filed in support of her initial Rule 56(d)
motion, Ms. Sherrod admits that she had two subscriptions, but
she swears that she cancelled both of them.

She avers:

I cancelled the subscriptions on or about October 8,
2012. I did not receive the email confirmation that I
was told I would receive.
I was not immediately
concerned because at that time Enigma did not charge my
credit card.
On or about October 10, 2012, I received a notice of
renewal. I immediately contacted Enigma. I was very
clear in my email to the company that I canceled both
subscriptions
associated
with
my
username
(nicoleasherrod) on October 8, 2012. I also was clear
that I did not authorize a renewal and was requesting a
credit.
(Doc. #16, Ex. A at ¶¶6-7).

Ms. Sherrod also swears that Enigma

charged her credit card for both, not just one, subscription.
Id. at ¶9.

Thus, the theories advanced by both Enigma and Ms.

Sherrod are based upon the actions taken, or not taken, with
respect to Ms. Sherrod’s two subscriptions.

In her supplemental

motion, Ms. Sherrod limits her request for discovery to her
“personal claims.”

(Doc. # 26 at 3).

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However, Ms. Sherrod fails

to explain how discovery related to Enigma’s business processes
would help her to establish her claims for breach of contract,
promissory estoppel, fraud, or misrepresentation and to oppose
Enigma’s claim that she cancelled only one of the two
subscriptions.
Ms. Sherrod’s separate argument that she needs the documents
pertaining Enigma’s business processes to act as a key to
understanding the technical documents that Enigma has produced is
similarly unpersuasive.

If Ms. Sherrod needed additional

clarification regarding those documents, she could have deposed
Mr. Malaspina or sought to depose Mr. Beidle as provided in the
agreed-on order.

By her own admission, Ms. Sherrod elected not

to pursue that discovery, and a Rule 56(d) motion may not be
based on a preference that the discovery sought come in the form
of documents, as opposed to deposition testimony.
Here, if Ms. Sherrod wanted more discovery, she was
obligated to explain why she cannot present facts essential to
justify her opposition to Enigma’s motion for summary judgment
given the discovery that she has already received.
has failed to provide such an explanation.

Ms. Sherrod

Consequently, Ms.

Sherrod’s Rule 56(d) motion will be denied.
III. Conclusion
Based upon the foregoing, Ms. Sherrod’s supplemental motion
for discovery pursuant to Fed. R. Civ. P. 56(d) is denied.
#24).

(Doc.

Ms. Sherrod has twenty-one days from the issuance of this

opinion and order to file a response to Enigma’s motion for
summary judgment.
IV. Procedure on Objections
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
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I., F., 5.

The motion must specifically designate the order or

part in question and the basis for any objection.

Responses to

objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.

S.D. Ohio L.R. 72.3.
/s/Terence P. Kemp
United States Magistrate Judge

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