United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jeffrey Cole Magistrate Judge.
31, 2017, the plaintiff - who we are told is a professional
litigant having been the plaintiff in numerous junk fax cases
- filed a class action Complaint charging Comprehensive
Marketing, Inc. (CMI) and Generac Power Systems, Inc.
(Generac) with having violated the Telephone Consumer
Protection Act (47 U.S.C. §227 and 47 C.F.R.
§64.1200). On September 11, 2017, CMI filed an
amended Rule 12(b)(1) Motion claiming the court lacked
subject matter jurisdiction because, according to the Motion,
a claimed CMI/Craftwood consensual relationship allowed the
conduct complained of in the Complaint. Thus, according to
the Motion, the Plaintiff had not suffered harm and therefore
the court lacks subject matter jurisdiction. [Dkt. 46].
Motion was supported by a memorandum with several exhibits,
that totaled about 84 pages. [Dkt. 47]. Generac subsequently
filed its own Motion, which, in joining CMI's Motion,
noted that it “adopt[ed] the factual statements and
arguments” in that motion, and asserted that the
“arguments raised in CMI's Motion are equally
applicable to Generac.” [Dkt. 52, at 3]. While the
defendants apparently did not dispute that the plaintiffs
were entitled to take limited discovery in connection with
the claimed jurisdictional insufficiency, they disputed the
extent to which discovery ought to be permissible and
objected strenuously to naming any corporate representatives
to be deposed about the relationship between the parties.
[Dkt. 55, 58].
October 26, 2018, the parties appeared before Judge Gettleman
and discussed the defendants' pending Motion to prohibit
the plaintiffs from deposing the movants. At the end of the
hearing, Judge Gettleman entered an Order that provided for
limited discovery on the issue raised in the jurisdictional
Motion. Thus, he said the plaintiffs could take discovery
“narrowed” to responding to defendants' Rule
12(b)(1) Motion, which he said “concern[ed] the alleged
prior business relationship between defendants and
plaintiff.” [Dkt. 68]. The Order immediately went on to
say that “[d]iscovery is stayed in all other
supplied). The Order thus made clear that Judge Gettleman was
allowing very limited discovery, while excluding broader
discovery into the merits of the overall case. Only literary
perversity or jaundiced partisanship could read the Order in
a more expansive way.
the plaintiffs' Reply Brief seeks to make much of the
word “concerning, ” which it reads quite broadly
and without regard to the informative context of its usage,
it is beyond debate that Judge Gettleman was not granting
unlimited discovery, and that his use of the word
“concerning” was intended to indicate what he
thought were the bases of the jurisdictional motion of the
defendant. A word is not a crystal transparent and unchanged,
Holmes incisively said, and it can have different meanings
depending on the setting in which it is used. Nixon v.
Missouri Municipal League, 541 U.S. 125, 132 (2004). A
single sentence, whether in a judicial Opinion or Order, is
not to be removed from its informing context and read with
pedantic literalism. We are not at liberty to-nor should
we-ignore the setting in which Judge Gettleman acted. It
“is a disservice to judges and a misunderstanding of
the judicial process to wrench general language in an opinion
out of context.” Aurora Loan Services, Inc. v.
Craddieth, 442 F.3d 1018, 1026 (7th Cir. 2006). The same
is no less true of judicial orders. Surgery Ctr. at 900
N. Michigan Ave., LLC v. Am. Physicians Assurance Corp.,
Inc., 2017 WL 2731285, at *2 (N.D. Ill. 2017).
on Judge Gettleman's Order, the plaintiffs demanded that
they be allowed to take the deposition of a corporate
representative of each defendant, limited to the claimed
prior relationship between the parties, which is the very
basis on which the defendants' jurisdictional Motion is
based. [Dkt. 94, 96]. The Defendants insist that they need
not require that they designate a corporate representative to
be deposed on the substance of the allegations in the Motion
to Dismiss. Their view is that the plaintiffs can adequately
deal with the questions raised in the Motion with
Declarations of their own or other proof that would support
their position. They have gone so far as to contend that
depositions of the defendants are unnecessary since they say
evidence already shows that a business relationship between
the parties in fact existed. [See e.g., Dkt 105, at
3]. Thus, the defendants insist that depositions of their
officers would be a waste of time, unnecessarily cumulative
of written discovery, and unduly harassing. Thrown in for
good measure is the lawyer's assertion that the
prospective deponents don't know anything - a claim that
is everywhere deemed insufficient to forestall depositions.
See Horizons Titanium Corp. v. Norton Co. 290 F.2d
421, 425 (1st Cir. 1961); Van Den Eng v.
Coleman, Inc., 2005 WL 3776352 at *3 (D.Kan.2005);
WebSideStory, Inc. v. NetRatings, Inc., 2007 WL
1120567 (S.D.Cal.2007); 8 Wright, Miller & Marcus,
Federal Practice & Procedure: Civil 2d § 2037 at 500
simple answer to the movants' objection is that the
defendants must designate someone who has knowledge or can be
educated about the very things that are advanced in the
Motion to Dismiss for want of jurisdiction. It is idle at
best to suggest that a moving party can raise an issue and
then prevent discovery on the very issue it has injected into
the case. See Schlagenhauf v. Holder, 379 U.S. 104
(1964); GAB Bus. Servs., Inc. v. Syndicate 627, 809
F.2d 755, 762, n.11 (11th Cir. 1987); United Auto. Ins.
Co. v. Veluchamy, 747 F.Supp.2d 1021, 1029-1030
(N.D.Ill.2010)(and cases cited). Indeed, denying belated
amendments to pleadings is often based on the recognition
that the amendment would inject new issues into the case,
requiring extensive discovery. Berger v. Edgewater Steel
Co., 911 F.2d 911, 924 (3rd Cir. 1990). The underlying
principle is also seen in cases where a party injects an
issue in the case and then seeks to hide behind a claim of
privilege. Of course, the claim is uniformly rejected.
See e.g., In re Grand Jury Proceedings, 219 F.3d
175, 182 (2nd Cir.2000); Doe v. Oberweis Dairy, 456
F.3d 704, 718 (7th Cir.2006); Lorenz v. Valley Forge
Insurance. Co., 815 F.2d 1095, 1098 (7th Cir.1987);
In re Sims, 534 F.3d 117, 132 (2d Cir.2008); 21 C.
Wright & K. Graham, Federal Practice and Procedure §
5039 at 828 (2005).
also told by the defendants that notwithstanding
their Motions to Dismiss, they object to any
depositions on the ground that they would serve only as an
improper opportunity for Plaintiffs to go on a “fishing
expedition for evidence outside of the parameters set by the
district court in its October 26, 2017 Order.” [See
discussion generally, Dkt. 96 at 11]. But Judge
Gettleman's Order plainly did not give the defendants a
veto over how the plaintiffs might attempt to
disprove the factual claims in the defendants' Motion,
which is based on a claimed prior relationship with the
plaintiffs. That he did not was perfectly consistent with the
adversarial nature of our legal system. What an odd and
curious inversion if a party in litigation could decide how
its opponent should proceed in an attempt to disprove the
very allegations that were made against it. Yet, that is what
the defendants are, in effect, now attempting to do. While
one can argue about the efficacy of depositions, there can be
no argument that one's opponent is not precluded from
acting in a certain way merely because his opponent thinks
the proposed course will not be productive or will involve
what turns out to be a waste of time.
defendants have said that the plaintiffs' insistence on
taking limited depositions is merely a “fishing
expedition” that will yield nothing of value. But
judges are not clairvoyant. Beverly v. Abbott Labs.,
817 F.3d 328, 336 (7th Cir. 2016); Ballard v. Cit. Cas.
Co., 196 F.2d 96, 102 (7th Cir.1952). And neither are
lawyers. Tendentious and partisan predictions by one party do
not mean that an opponent's contrary views are infirm and
must be rejected. Miller v. Lehman, 801 F.2d 492,
500 (D.C. Cir. 1986)(Edwards, J., concurring). And vigorously
asserting that one is right does not make the opposing view
wrong. “Unfortunately saying so doesn't make it
so.”United States v. 5443 Suffield Terrace, Skokie,
Ill., 607 F.3d 504, 510 (7th Cir. 2010). See also
Dennis v. Kellogg Co., 697 F.3d 858, 866 (9th
Cir. 2012). Perhaps in the end the defendants will turn out
to have been right, and the plaintiffs' efforts to show
the alleged illegitimacy of the faxes received from the
defendants will prove futile. Perhaps not. Only discovery
will provide the answer.
adversary system is fundamental to Anglo-American
jurisprudence. Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 596 (1993); United States v.
O'Neill, 437 F.3d 654, 660 (7th Cir.2006); Dal
Pozzo v. Basic Machinery Co., Inc., 463 F.3d 609,
613-614 (7th Cir.2006). Indeed, “a partisan scrutiny of
the record and assessment of potential issues, goes to the
irreducible core of the lawyer's obligation to a litigant
in an adversary system....” Smith v. Robbins,
528 U.S. 259, 293(2000) (Souter, J., dissenting). See
also, United States v. Cronic, 466 U.S. 648,
655 (1984); Philips Medical Systems Intern. B.V. v.
Bruetman, 8 F.3d 600, 606 (7th Cir.1993)(counsel
“is supposed to give the evidence a partisan
slant”); Sommerfield v. City of Chicago, 254
F.R.D. 317 (N.D.Ill.2008). It would be inconsistent with our
adversary system to allow lawyers for one side to dictate to
their opponents what the disputed issues should be, whether
discovery was necessary, how it should proceed, who should be
called as a witness, and generally how the case should be
prepared and tried. “‘Our adversary system is
designed around the premise that the parties know what is
best for them, and are responsible for advancing the facts
and arguments entitling them to relief.'”
Sanchez-Llamas v. Oregon, 548 U.S. 331, 356
(2006). See also Burlington N. & Santa Fe Ry. Co. v.
United States, 556 U.S. 599, 622-23 (2009);
Washington v. Texas, 388 U.S. 14, 19 (1967);
Makiel v. Butler, 782 F.3d 882, 907 (7th Cir. 2015).
acceptance of the arguments made by the defendants in the
context of the present case would, in effect, allow them to
dictate how the plaintiffs could attempt to disprove the
charges that the defendants have injected into the case in
their jurisdictional motions. Nothing in the transcript of
the hearing before Judge Gettleman and certainly nothing in
his Order justifies or allows ...