United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RONNIE L. WHITE, District Judge.
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.
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 ("MMPA"); 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).
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. §407.020.1 and the Attorney General's regulation on unfair practices imposed a 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 MMPA.
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 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, ¶5). Plaintiffs anticipate that discovery issues will be the same and that many of the same witnesses will testify in both cases. (ECF No. 31, ¶6). Likewise, Plaintiffs allege that common ...