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Myles v. Rent-A-Center, Inc.

United States District Court, D. Maryland

May 31, 2016

CRAIG MYLES, Individually and as Parent and Next Friend of K.M. and A.M., minors, Plaintiffs
RENT-A-CENTER, INC., et al., Defendants


          James K. Bredar Judge

         Craig Myles (“Mr. Myles”) brought an action on behalf of himself and his minor children (collectively, “Plaintiffs”) in the Circuit Court for Baltimore County, Maryland, accusing Rent-A-Center, Inc., and Rent-A-Center East, Inc. (together, “Defendants”) of negligence, breach of warranty, violation of the Maryland Consumer Protection Act, and common-law fraud. Plaintiffs’ claims arise from a rental-purchase agreement that Mr. Myles executed at a Towson, Maryland, Rent-A-Center store: Plaintiffs allege that (1) Mr. Myles leased an ostensibly merchantable couch at the store but (2) the couch was in fact infested with bed bugs and (3) the infestation spread into Plaintiffs’ apartment, causing them physical and emotional distress. On February 3, 2015, Defendants removed the action to this Court on diversity grounds (ECF No. 1);[1] on July 7, 2015, the Court denied Defendants’ Motion to Dismiss (ECF No. 19), and the parties proceeded to discovery on Plaintiffs’ claims. Discovery closed on April 21, 2016. (See ECF No. 61.)

         Now pending before the Court are five procedural motions[2]: Plaintiffs’ Motion to Undo Confidentiality (ECF No. 71); Plaintiffs’ Motion for Leave to File Amended Complaint (“Motion to Amend”) (ECF No. 72); Defendants’ April 20, 2016, status report, which the Court has construed as a Motion to Exclude Evidence (see ECF Nos. 74 & 75); and Defendants’ two Motions for Leave to File Sur-Reply (ECF Nos. 85 & 86). The issues have been briefed, and no hearing is required, see Local Rule 105.6 (D. Md. 2014). For the reasons explained below, all five pending motions will be DENIED.

         I. Plaintiffs’ Motion to Undo Confidentiality (ECF No. 71)

         In their Motion to Undo Confidentiality, Plaintiffs challenge the protected designation of (1) documents relating to Defendants’ policies, practices, and procedures concerning bed bug prevention and complaint resolution; and (2) records of eighty-three bed bug claims that Defendants received between November 6, 2013, and December 29, 2014. Plaintiffs contend that these documents should remain confidential only if Defendants can “establish with specificity that disclosure . . . will result in substantial harm to [their] businesses, and that [such] harm outweighs both the necessity of the material to dispositive motions practice . . . and the traditional right to public access of judicial documents and records.” (ECF No. 71-1 at 5.) Notably absent from Plaintiffs’ brief in support of their motion is any explanation as to how the current confidentiality designation-pursuant to the Consent Confidentiality Order (“CCO”) entered on December 23, 2015, following robust motions practice and a December 14, 2015, hearing-compromises Plaintiffs’ ability to litigate their claims or otherwise prejudices them.

         Plaintiffs’ invocation of the “traditional right to public access of judicial documents and records” struck the Court as oddly familiar. Curious, the Court reviewed the audio recording of the December 14 hearing. During that hearing, Plaintiffs’ counsel proffered that if materials adduced in discovery became “necessary to respond to a motion for summary judgment, ” he should be permitted to “use that information without submitting it under seal because there is a First Amendment issue . . . about public access to court filings.” (Motions Hearing at 13:14:56, Myles v. Rent-A-Center, Inc., Civ. No. JKB-15-300 (December 14, 2015) [hereinafter “Motions Hearing”].) Counsel added that he does not “believe it’s appropriate to litigate in secret.” (Id. at 13:17:25.) These statements, made in open court, parallel contentions counsel raised in his November 2, 2015, response in opposition to Defendants’ request for a confidentiality order: he wrote that “the public has a presumptive right of access to material filed with the court” and that if Defendants’ “policies, practices and procedures are deficient, they should be subjected to public scrutiny.” (ECF No. 36 at 7-8.) The Court considered these points in reaching its determination as to the appropriate scope both of discovery and of the CCO that the Court ultimately entered. That CCO represents a deliberate balance that the Court struck in this case: the Court required Defendants to produce substantial, potentially proprietary, material for Plaintiffs’ inspection, on condition that such material would be used only for purposes of this litigation and would be filed under seal. The Court enforced this balance in Plaintiffs’ favor in a February 19, 2016, Order, in which it directed defense counsel to produce “any content from Defendants’ internal network that is responsive to the Court’s [Discovery] Orders, ” as well as “any documents, e-mails, or customer correspondence files that have been retained by Defendants and that concern prior bedbug claims or the terms of resolution of such claims.” (ECF No. 61 at 1 (emphases added).) The Court reminded counsel in that February 19 Order that all confidential documents would be produced subject to the terms and conditions of the CCO (id. at 1-2): defense counsel presumably relied on that caveat in complying with his discovery obligations.

         Yet the Court did not leave Plaintiffs without an avenue to challenge confidentiality going forward. Rather, the Court provided express guidance to inform any such challenge:

THE COURT: Plaintiff[s] [are] going to receive from Defendants the information relating to claims within the scope that I originally defined . . . . Defendant[s] . . . [are] free to redact names, addresses, and telephone numbers, but otherwise ha[ve] to turn over the information that Plaintiff[s] ha[ve] requested-the complete universe of [relevant] material . . . . Then, Plaintiff[s] ha[ve] a request for what are, essentially, internal documents . . . . What I think I hear Defendants saying is that they are not resisting discovery with respect to that information . . . but they insist on a protective order that holds these procedures . . . in confidence, and requires that whatever information is produced be carefully supervised by Plaintiffs’ counsel and, ultimately, returned to Defendants when the litigation has been completed. . . . That is how we will proceed at the next step . . . . Then [Plaintiffs’ counsel], once that discovery has been completed, and you’ve got the information . . . you’re free to come back to the Court and say, “I have a particularized need to undo the confidentiality order with respect to this particular document, procedure, policy, et cetera. And here’s why.” And if your position is going to be, “I don’t like to litigate in secret, ” well, that’s fine, you can submit that. That’s probably not going to go too far. If it’s, listen, this is limiting my ability to do X, Y, and Z in relation to the representation of this client in this case and is frustrating my ability to get to the truth of what happened here, that might engender more sympathy.

(Motions Hearing at 13:21:25 (emphases added).) The Court repeated this guidance in its Order of December 14, 2015, writing that “should [Plaintiffs’ counsel] encounter a particularized need to undo confidentiality with respect to a specific item of discovery, he may file an appropriate motion with the Court.” (ECF No. 46 at 2.) Yet far from describing a particularized need to undo confidentiality with respect to any particular document, Plaintiffs have posed a generalized request grounded in the very argument that the Court previously found unpersuasive on the facts of this case. While Plaintiffs correctly observe that, under the terms of the CCO and, for that matter, Local Rule 104.13 (D. Md. 2014), Defendants bear the burden of justifying confidentiality in a properly raised challenge, Plaintiffs bear the burden in the first instance of framing such a challenge: they plainly have not done so here. See Allstate Ins. Co. v. Warns, Civ. No. CCB-11-1846, 2012 WL 681792, at *17 n.8 (D. Md. Feb. 29, 2012) (“[U]nder the form of protective order approved in this District, a party who has signed the order can nonetheless challenge the confidential designation as to any particular document, in which case the party seeking continued protection retains the burden of justifying the seal.” (emphasis added)).

         Moreover, even were the Court inclined to overlook Plaintiffs’ noncompliance with the Court’s straightforward instructions (it is not), the Court could not feasibly assess the merits of Plaintiffs’ Motion to Undo Confidentiality because neither party has placed the relevant policy, practice, and procedural documents before the Court. Plaintiffs appended to their motion a spreadsheet that appears to summarize the bed bug claim files, and they included a report drafted by their expert that describes some of the procedural documents, but they did not append the subject documents themselves. The Court will not upend the parties’ settled expectations regarding confidentiality without so much as reviewing the documents that could be affected by such judicial intervention.

         One final point bears consideration. In their reply brief, Plaintiffs insist that “[m]embers of the public who shop at [Defendants’ stores] or who may consider acquiring used furniture from [Defendants] have an interest in the [subject] documents, ” as do “landlords whose apartments become infested by used . . . furniture.” (ECF No. 84 at 2-3.) Perhaps so, [3] and if a member of the public or the news media were to move to intervene in this matter or seek disclosure of sealed or redacted records, the Court would take appropriate action at that time.[4]But it is improper for Plaintiffs to wield the “public interest” as a mechanism to unravel a confidentiality agreement to which Plaintiffs assented. Courts have rejected similar attempts by litigants to circumvent their confidentiality obligations on public-access grounds. See, e.g., Pittston Co. v. United States, 368 F.3d 385, 406 (4th Cir. 2004) (concluding that district court did not abuse its discretion in refusing to unseal documents that were sealed pursuant to a stipulated protective order; distinguishing an earlier case in which a newspaper-intervenor sought to obtain sealed documents; and noting that the plaintiff already enjoyed access to the subject documents and had agreed to the protective order); Longman v. Food Lion, Inc., 186 F.R.D. 331, 333 (M.D. N.C. 1999) (explaining that it is “particularly appropriate” to require plaintiffs to show good cause as to why a confidentiality order should be modified or stricken where plaintiffs “stipulated to the terms of the protective order and [d]efendants relied on that protection”); see also Jochims v. Isuzu Motors, Ltd., 145 F.R.D. 499, 501, 503 (S.D. Iowa 1992) (“[T]here is general unanimity among the courts that where a party to [a] stipulated protective order seeks to modify that protective order, that party must demonstrate particular good cause in order to gain relief from the agreed[-]to protective order. . . . To permit [the plaintiff] to conduct discovery under one set of rules and then have the court abrogate those rules after [the plaintiff] has achieved his desired result would be to countenance discovery by ambush.”); cf. United States v. Morgan, 962 F.2d 8, 1992 WL 102573, at *3 (4th Cir. 1992) (unpublished table decision) (“Where the motion [to unseal] is brought by a party that has had a full opportunity to litigate the initial imposition of the seal, the appropriate threshold question is whether or not that party has shown a change in circumstances sufficient to warrant a reconsideration of the seal.”). The Court finds the analysis in these cases persuasive, and it extends that analysis here.

         Plaintiffs have failed to identify their particularized need to undo confidentiality with respect to any particular document(s), and Plaintiffs’ generalized public-interest argument is improper given their execution of the CCO and Defendants’ reliance thereon. Plaintiffs’ Motion to Undo Confidentiality will be DENIED.[5]

         II. Plaintiffs’ Motion to Amend (ECF No. 72)

         In their Motion to Amend, Plaintiffs propose to add a prayer for punitive damages to their existing negligence count, citing Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633 (Md. 1992), for the proposition that punitive damages may be recoverable in negligence cases if the defendant acted with a sufficiently culpable mental state (i.e., with actual malice). As authority for their motion, Plaintiffs rely on Rule 15(a)(2) of the Federal Rules of Civil Procedure, which instructs courts to “freely give leave” to amend when “justice so requires.” See also Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir. 1980) (“In the absence of any apparent or declared reason [for denial] such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.[, ] the leave sought should, as the rules require, be ‘freely given.’” (quoting Foman v. Davis, 371 U.S. 178, ...

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