IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Nicole A. Sherrod, :

Plaintiff, :

v. : Case No. 2:13-cv-36

 : JUDGE JAMES L. GRAHAM

Enigma Software Group, USA, Magistrate Judge Kemp

LLC, :

Defendant. :

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

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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) defer considering the motion or deny it;

(2) allow time to obtain affidavits or

declarations or to take discovery; or

(3) 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). However, Ms. Sherrod fails

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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. Ms. Sherrod

has failed to provide such an explanation. 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. (Doc.

#24). 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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