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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Moien Louzon,

Plaintiff,

v. Case No. 09-11205

Ford Motor Company, Sean F. Cox United States District Court Judge

Defendant.

_______________________________/

OPINION & ORDER

This 2009 case is currently before the Court on: 1) Plaintiff’s appeal of the magistrate

judge’s November 1, 2013 Opinion & Order reconsidering, following remand, Plaintiff’s

September 11, 2009 Motion to Compel; and 2) Plaintiff’s Motion To Permit Discovery. The

Court finds that oral argument would not aid the decisional process. See Local Rule 7.1(f)(2),

U.S. District Court, Eastern District of Michigan. For the reasons set forth below, the Court

shall: 1) AFFIRM the magistrate judge’s November 1, 20013 Opinion & Order; and 2) DENY

AS UNTIMELY Plaintiff’s Motion to Permit Discovery. 

BACKGROUND

This case, filed in 2009, has a lengthy background. The Court includes here only those

background facts that are necessary for the pending matters.

This case was originally assigned to the Honorable Anna Diggs Taylor. Her original

Scheduling Order provided that discovery would close on September 11, 2009. Discovery was

extended until November 23, 2009, by virtue of a stipulated order. It was extended again on

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January 12, 2010, this time until February 10, 2010. Meanwhile, there were several motions to

compel discovery filed by the parties, which were all referred to Magistrate Judge R. Steven

Whalen, including a September 11, 2009 Motion to Compel filed by Plaintiff. (Docket Entry No.

7).

Plaintiff’s September 11, 2009 Motion to Compel sought information regarding a few

discovery requests. The motion also asked the Court to extend the discovery deadline, which the

magistrate judge did. He did not, however, extend discovery for as long as Plaintiff had

requested.

On April 12, 2010, Defendant filed a Motion for Summary Judgment. Judge Taylor

denied the motion on July 22, 2010, in an order, without issuing an Opinion.

On December 6, 2010, the case was reassigned to this Court. This Court entered a new

Scheduling Order that set a final pretrial conference and trial date.

Thereafter, this Court granted a motion in limine filed by Defendant, seeking to exclude

evidence and argument of non-comparable employees and ultimately granted summary judgment

in favor of Defendant.

Plaintiff appealed. The Sixth Circuit reversed this Court’s in-limine ruling as to evidence

of Plaintiff’s comparators and vacated the summary judgment ruling to Defendant on Plaintiff’s

age and national-origin discrimination claims. It also vacated the denial of Plaintiff’s September

11, 2009 motion to compel and remanded “for further proceedings consistent with this opinion.” 

Louzon v. Ford Motor Co., 718 F.3d 556 (6th Cir. 2013). 

As to the September 11, 2009 Motion to Compel, the opinion stated that Plaintiff’s

appellate “brief argues only that the district court abused its discretion in denying his request

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outlined in the September 11, 2009 motion that Ford produce information on product

engineers who were involuntarily terminated during the preceding ten years.” Id. at 567.

(emphasis added). Thus, Plaintiff did not argue on appeal that this Court erred in not extending

discovery for as long as Plaintiff would have liked, nor did he assert that he was entitled to any

other discovery. The Opinion states that the basis for the magistrate judge’s decision is unclear

from the record (no transcripts were provided to the appellate court by the parties) and that the

district court (Judge Taylor) affirmed the magistrate judge’s rulings without any explanation. 

Nevertheless, based on argument by Defendant Ford during the appeal, the Sixth Circuit

concluded that the magistrate judge must have issued his ruling because he believed Plaintiff was

not entitled to discovery on individuals who were not supervised by Bailey (the supervisor who

had supervised Plaintiff). The Sixth Circuit stated that “it is not a prerequisite in discrimination

cases that a comparator have the same supervisor as the plaintiff” and thus restricting discovery

“based on this erroneous same-supervisor requirement” amounts to an improper denial of

discovery. Id. at 567. The opinion states that “[i]n light of the scant reasons offered by the

district court for its denial of Louzon’s motion, and because the only discernable characterization

of either the magistrate judge or district court’s ruling is a clearly erroneous statement of law, we

VACATE the district court’s order denying Louzon’s September 11, 2009 motion to compel and

REMAND for reconsideration of this motion under the correct legal standard in the first instance

by the district court.” Id. 

The mandate was issued on June 26, 2013. This Court held a Status Conference on July

22, 2013. Thereafter, this Court issued a “Scheduling Order and Order Regarding Discovery”

(Docket Entry No. 85) on July 23, 2013, that stated “DISCOVERY is extended to allow

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compliance with Section IV of the Sixth Circuit Order, dated June 4, 2013, in case #11-2356. 

The scope of discovery is limited to that allowed by Section IV of the Order, and must be

completed by: NOVEMBER 19, 2013.” 

This Court then issued an Order of Reference to the magistrate judge for the purpose of

conducting a “Status conference regarding outstanding discovery issues addressed in the Sixth

Circuit Order, issued on June 3, 2013, in Case #11-2356.” (Docket Entry No. 86).

This Court later issued another Order of Reference to the magistrate judge for the purpose

of reconsidering the September 11, 2009 Motion to Compel as ordered by the Sixth Circuit. 

(Docket Entry No. 90). After that, both parties filed supplemental briefs. (Docket Entry Nos. 92

& 93).

On November 1, 2013, Magistrate Judge Whalen issued an Opinion & Order (Docket

Entry No. 94) wherein he reconsidered Plaintiff’s September 11, 2009 Motion to Compel and

granted the motion in part and denied it in part. He reaffirmed his prior rulings granting specific

requests made by Plaintiff, directing Defendant Ford to turn over any responsive information it

had not already provided. (Opinion & Order at 2). As to the issue that was raised on appeal, in

the Opinion & Order Magistrate Judge Whalen explains that, “not having had the transcripts” the

“Sixth Circuit understandably erred in supposing” that the “different supervisor” argument was

the reason why he had denied the Plaintiff’s request. (Id. at 3). He states that he would reach the

same conclusion upon reconsideration, if the issue were not moot. But he states the “issue is

now moot, given Plaintiff’s representation at oral argument that he is withdrawing the request. 

Therefore the motion to compel with regard to this category of discovery is DENIED AS

MOOT.” (Id. at 4). 

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The Opinion then goes on to address Plaintiff’s request to re-open discovery. Magistrate

Judge Whalen notes that his order of reference limited him to what is required by the Sixth

Circuit’s ruling to reconsider under the correct legal standard. He thus states that he cannot reopen discovery and if the parties wish to expand discovery they can “petition Judge Cox for an

expansion of discovery.” (Id. at 5). He does state, however, that he finds “Plaintiff’s argument

that he was previously unaware of facts that would have provided the basis for his request for

additional discovery regarding similarly situated employees” “unpersuasive” explaining:

Notwithstanding Plaintiff’s contention that Defendant changed its position as to

who was primarily responsible for the decision to terminate him, he knew that he

received a 49 day leave, and he knew that he had been away from work for more

than 89 days (his combined, vacation, personal time, and leave of absence). 

Regardless of who made the decision to fire him, or whether his termination was

pursuant to some automatic policy, Plaintiff had, from the beginning, all of the

information reasonably available to make an informed discovery request for

similarly situated Ford employees who were not terminated. Moreover, in my

original order [Doc. #14], I granted the request to extend discovery (although not

as long as Plaintiff wanted), yet Plaintiff did not seek this information during the

extension.

(Id. at 5).

Thereafter, on November 13, 2013, Plaintiff filed: 1) Objections to Magistrate Judge

Whalen’s November 1st Opinion & Order (Docket Entry No. 95); and 2) “Plaintiff’s Motion To

Permit Discovery” (Docket Entry No. 96). Defendant responded to both of those submissions in

a single response brief (Docket Entry No. 97). Plaintiff also filed a Reply Brief. (Docket Entry

No. 98). 

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ANALYSIS

A. Plaintiff’s Objections To Magistrate Judge Whalen’s November 1st Opinion &

Order

Under Fed. R. Civ. P. 72, the district judge to whom the case is assigned may “modify or

set aside any part of the order that is clearly erroneous or contrary to law.”

Here, Plaintiff objects to two portions of Magistrate Judge Whalen’s November 1st

Opinion & Order: 1) the magistrate judge’s “denial of an extension of time for the Plaintiff to

conduct discovery for the purpose of determining the national origin of the six comparables

identified by Defendant”; and 2) his “denial of an extension of time for the Plaintiff to conduct

discovery regarding engineers who were returned to work after a leave of absence which

extended beyond 49 days (the leave of absence received by Plaintiff), or were returned after

being away from work for more than 89 days (the combined vacation, personal time, and leave of

absence time received by Plaintiff).” (Pl.’s Objs. at 1-2). 

Notably, Plaintiff does not object to that portion of the Opinion & Order wherein

Magistrate Judge Whalen stated that, as to the discovery requests seeking information as to each

Ford engineer who was involuntarily terminated for any reasons from 2000 to the present,

Plaintiff’s Counsel withdrew that request at oral argument and the request was now moot.

Plaintiff’s objections simply state what he wishes the magistrate judge to have ordered

and asks the Court to add that on to the order the magistrate judge issued. He does not explain

how any ruling in the Opinion & Order could be considered clearly erroneous or contrary to law.

Thus, his “objections” are no more than a motion seeking to re-open discovery.

This Court shall affirm the November 1st Opinion & Order because Plaintiff has not

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established that any portion of it is clearly erroneous or contrary to law. Rather, as explained

below, the Opinion & Order properly analyzed all three issues it addressed.

1. Discovery Requests Seeking National Origin Information Of Six

Comparables

On page 2, the magistrate judge addresses Plaintiff’s Interrogatory Number 7 and his

Document Request Number 10 – which sought name, contact information, and national origin as

to those employees who were terminated during the past 10 years as a voluntary quit after failing

to return from a leave (ie., the six comparables Ford had identified). Judge Whalen granted that

request back on October 27, 2009, and he reaffirmed that ruling when he reconsidered the motion

after the mandate. Defendant Ford responded back in 2009 that it cannot provide the national

origin information for those six past employees because it does not track national origin

information of its employees. (See Ex. 7 to Ford’s Br.). Thus, Plaintiff knew back in 2009 that

Defendant did not have the national origin of those prior employees. And given that the

November 1st Opinion & Order reaffirms that he is granting this request by Plaintiff, and ordered

Defendant to provide any responsive information it has not already produced, Plaintiff has not

identified any error as to this issue.

2. Discovery Requests Regarding All Engineers Terminated Over Past Ten

Years

These discovery requests (Interrogatory Number 9 and Document Request Number 13)

are the sole focus of the Sixth Circuit’s remand. But again, Magistrate Judge Whalen states that

Plaintiff’s Counsel withdrew those requests during oral argument on October 16, 2013, and

Plaintiff does not dispute that or assert any objection to his ruling that those requests are now

moot.

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3. Plaintiff’s Request To Expand Discovery

In his original order on the September 11, 2009 motion, Magistrate Judge Whalen granted

Plaintiff’s request to extend discovery and extended it until November 21, 2009. Thus, while he

did not extend discovery for as long as Plaintiff would have liked, he granted that request when

he originally ruled upon the motion.

Following remand, Plaintiff asked the magistrate judge to re-open discovery and to

expand the scope of discovery. He declined to do, stating that he lacked the authority to do so

given the narrow remand by the Sixth Circuit and given this Court’s narrow and focused order of

reference. 

Magistrate Judge Whalen did not err in denying Plaintiff’s new request that the Court reopen discovery.

II. Plaintiff’s Motion To Permit Discovery

Discovery in this action closed back in 2009. On appeal, the Sixth Circuit vacated this

Court’s summary judgment ruling. The Court further vacated the order denying Plaintiff’s

“September 11, 2009 motion to compel and REMAND[ED] for reconsideration of th[at] motion

under the correct legal standard.” The remand was limited to reconsideration of the “same

supervisor” argument that the Sixth Circuit had assumed had been the basis for the magistrate

judge’s ruling. The Sixth Circuit did not order, or even suggest, that this Court should re-open

discovery for any other purpose, other than the sole issue pertaining to the September 11, 2009

motion that Plaintiff raised in his appellate brief. (See Louzon v. Ford supra) (stating that

Plaintiff’s appellate “brief argues only that the district court abused its discretion in denying his

request outlined in the September 11, 2009 motion that Ford produce information on product

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engineers who were involuntarily terminated during the preceding ten years.” Id. But upon

remand, Plaintiff withdrew his discovery requests that speak to that narrow issue.

Now, some four years after discovery closed, Plaintiff asks this Court to re-open

discovery to obtain discovery that was not part of the limited remand. Plaintiff asks the Court to

reopen discovery for a period of 60 days so that he can obtain discovery regarding: 1) the

national origin of the 6 comparable engineers named by Ford; and 2) any engineers who were

returned to work after a leave of absence which extended beyond 49 days or were returned after

being away from work for more than 89 days. Plaintiff claims that he was not given a fair

opportunity to seek discovery as to these areas because Ford did not provide certain discovery

responses to him until shortly before the discovery deadline and, in one instance, shortly after the

deadline. That argument, however, ignores the obvious – the time to seek to re-open or expand

discovery based on these arguments would have been back in 2009, either before or shortly after

the last discovery deadline. And Plaintiff could have asked this Court to extend discovery after

the case was reassigned to this Court on December 6, 2010, but he did not do so. The Court shall

deny Plaintiff’s Motion to Permit Discovery.

CONCLUSION & ORDER

For the reasons set forth above, IT IS ORDERED that this Court hereby AFFIRMS the

magistrate judge’s November 1, 2013 Opinion & Order.

IT IS FURTHER ORDERED that Plaintiff’s Motion to Permit Discovery is DENIED AS

UNTIMELY.

IT IS FURTHER ORDERED that the parties shall appear for a Final Pretrial Conference

on February 10, 2014, at 2:00 p.m. The parties must submit a proposed Joint Pretrial Statement

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signed by counsel for all parties, one week prior to the Final Pretrial Conference. Because the

main focus of the Final Pretrial Conference will be on settlement, counsel must bring their

clients and any persons with full settlement authority up to Plaintiff’s demand with them to

the conference. 

IT IS FURTHER ORDERED that Trial in this matter shall take place on March 4, 2014.

IT IS SO ORDERED.

S/Sean F. Cox 

Sean F. Cox

United States District Judge

Dated: January 14, 2014

I hereby certify that a copy of the foregoing document was served upon counsel of record on

January 14, 2014, by electronic and/or ordinary mail.

S/Jennifer McCoy 

Case Manager

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