HOLBROOK v. THE BRINK'S COMPANY et al

Filing 92

ORDER denying 89 Motion for Summary Judgment. The parties are DIRECTED to confer with the Magistrate Judge by April 28, 2016. The Magistrate Judge will then issue a case scheduling order containing deadlines for the conclusion of discovery and the filing of dispositive motions. Signed by Judge Algenon L. Marbley on 4/6/2016. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF AMERICA,
ex rel., BRIAN D. HOLBROOK
Plaintiff,
v.
THE BRINK’S COMPANY, et al.,
Defendants.

:
:
:
:
:
:
:
:
:
:

Case No. 2:13-CV-873

JUDGE ALGENON L. MARBLEY
Magistrate Judge Deavers

OPINION & ORDER
This matter is before the Court on the Motion for Summary Judgment of Defendants
Walter Luhrman and Jackson Metals, LLC (“Jackson Metals”). (Doc. 89.) Plaintiff Brian D.
Holbrook asks the Court to deny the Motion without prejudice as premature because the parties
have been engaged in mediation rather than active discovery efforts. (Doc. 90 at 1.) In the
alternative, Holbrook asks that the Court defer a ruling on the motion until the Court has
determined that the parties’ mediation efforts were unsuccessful or, at a minimum, that he be
granted an additional 90 days to conduct discovery on the issues raised in the Motion for
Summary Judgment. (Id. at 1-2.) For the reasons that follow, the Court DENIES the Motion for
Summary Judgment without prejudice.
This False Claims Act case was transferred to this Court from the District of New Jersey
on September 24, 2013. After the parties requested a settlement conference, Chief Judge Sargus
was assigned to mediate the case. On October 18, 2013, the Magistrate Judge issued a
scheduling order setting a deadline for the completion of discovery by August 1, 2014. (Doc. 62
at 2-3.) After an initial mediation conference, the parties jointly moved to vacate the previous
scheduling order because although they were unable to reach a settlement at that time, they had
1

not yet conducted any discovery and hoped that they could resume settlement discussions after
the Court’s ruling on Defendants’ motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). (Doc. 71.) The Court vacated the scheduling order. (Doc. 72.) Subsequently, the
Court granted in part and denied in part the motion to dismiss (Doc. 74.) at which time the
parties again held two mediation conferences before Chief Judge Sargus in May 2015 and
November 2015 and engaged in limited discovery. (Doc. 82.) Since that time, there have been
no further status conferences or mediation conferences and the Court has issued no additional
scheduling orders. A mediation status conference is currently scheduled with Chief Judge
Sargus for April 21, 2016. (Doc. 88.)
On March 1, 2016, Defendants Jackson Metals and Luhrman, the owner of Jackson
Metals, filed their motion for summary judgment, relying on the fact that the Court’s earlier
order on the motion to dismiss determined that the pre-Fraud Enforcement and Recovery Act
version of the False Claims Act applied to any conduct alleged prior to May 20, 2009 while the
post-FERA version of the False Claims Act applied to any conduct alleged after May 20, 2009.
(Doc. 89 at 3.) The Court then held that Plaintiff had failed to allege a claim for pre-FERA
liability for conspiracy but had pleaded sufficient facts to survive a motion to dismiss on the
post-FERA claim. (Id.) Defendants now assert that they are entitled to summary judgment
because the sole pending claim against Luhrman and Jackson Metals is a post-FERA conspiracy
claim, that is, a claim that a conspiracy occurred after May 20, 2009, and Defendants maintain
that the company ceased to exist before that date. (Id.)
Plaintiff respond that the motion is premature because due to the mediation efforts of the
parties there has been very little discovery taken to date. Specifically, in an affidavit
accompanying their response in opposition to the summary-judgment motion, Plaintiff’s counsel

2

states that the parties have engaged in limited document production but have taken no
depositions. They also contend that the documents that the parties have produced are not related
to the question of whether Jackson Metals ceased to exist in 2009. Defendants Luhrman and
Jackson Metals counter that Plaintiff knew that the continued existence of Jackson Metals was a
subject of the litigation because Jackson and Luhrman asked Plaintiff in January 2015 to dismiss
them voluntarily from the suit on the ground that Jackson had ceased operations in March 2009.
(Doc. 91 at 4.) Defendants state that they have provided discovery to Plaintiff and that Plaintiff
has not put forth any evidence of post-FERA activities by Jackson Metals; therefore, they argue
that they should not have to bear the continued expense of this prolonged litigation are entitled to
a grant of summary judgment. (Id. at 5.)
Federal Rule of Civil Procedure 56(d) provides, in relevant part, that “[i]f a nonmovant
shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to
justify its opposition, the court may . . . defer considering the motion or deny it.” The affidavit
or declaration must “indicate to the district court [the party’s] need for discovery, what material
facts [the party] hopes to uncover, and why [the party] has not previously discovered the
information.” Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000) (citing Radich v.
Goode, 886 F.2d 1391, 1393-94 (3d Cir. 1989)).
The Court acknowledges that this litigation has been lengthy and that Plaintiff has known
that Jackson Metals and Luhrman have sought dismissal on the ground that Jackson Metals
ceased operations before FERA was enacted. But since the parties have been engaged in
settlement negotiations and, accordingly, the Court had not set a new deadline for the completion
of discovery, Plaintiff is entitled to additional time to seek evidence that would bolster its
argument that Jackson Metals had not, in fact, ceased its operations at the time FERA was

3

enacted. If the parties’ April 21, 2016 telephonic mediation status conference with Chief Judge
Sargus is not productive as to settlement, the parties will be granted a limited amount of time to
conclude discovery and file dispositive motions so as to advance this litigation in as timely a
fashion as possible.
Defendants’ Motion for Summary Judgment is DENIED without prejudice under Rule
56(d). The parties are DIRECTED to confer with the Magistrate Judge by April 28, 2016, seven
days after the April 21, 2016 telephonic status conference with Chief Judge Sargus. The
Magistrate Judge will then issue a case scheduling order containing deadlines for the conclusion
of discovery and the filing of dispositive motions.
IT IS SO ORDERED.
s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: April 6, 2016

4