Wade Clark Mulcahy LLP

<p style="text-align: justify;">Pre-discovery motions for summary judgment are extraordinarily difficult to succeed on.  Opposition to such a motion essentially writes itself.   "Counsel's argument is premature, as further discovery is likely to reveal unknown information, and discovery has not even commenced yet, et cetera, et cetera...   And while McDonald’s pulled off a "Mcflurry" by succeeding on its motion at the state level, the Appellate Court hamburgled its victory, reversed, and remanded for further proceedings.</p>
<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2019/06/Peoples-v.-McDonalds-2.pdf">Peoples v. McDonalds</a></em><a href="https://www.wcmlaw.com/wp-content/uploads/2019/06/Peoples-v.-McDonalds.pdf"></a>, the Court of Appeals of Indiana found that McDonald’s could not avoid discovery obligations and simultaneously move for summary judgment.  In <em>Peoples</em>, a ten-year old patron was injured when he tried to get off a stool and it lifted off the floor and broke, causing him to fall.  A complaint was filed against McDonald’s and was later amended to add Indiana McDonald’s LLC, Randy Shields, and Toucan, Inc.</p>
<p style="text-align: justify;">Plaintiff served discovery demands on April 6, 2018.  McDonald’s sought two extensions of time to respond which were granted and time extended to July 31, 2018.  On July 10, McDonald’s moved for summary judgment, without responding to discovery, based solely on an affidavit from Shields as franchisee absolving McDonald’s from any responsibility for the bar stools.  A franchise agreement was not attached to the motion.  The grounds for summary judgment were similar to New York’s out-of-possession landowner statute, but due to its specificity, is rarely invoked until after completion of depositions.</p>
<p style="text-align: justify;">In this case the Court was clearly perturbed that despite multiple requests for extension of time to serve discovery responses, the motion was made in advance of a single document exchange.  As a general rule, summary judgment is improper while pending discovery is directly relevant to matters at issue such as the legal relationship between McDonald’s, Shields, and Toucan here.  The discovery demands were not seeking overly broad of "proprietary" information, such as, for example, Special Sauce ingredients.  (We're pretty sure it's just Thousand Island dressing, but that's a topic for another post.)</p>
<p style="text-align: justify;">Even more offensive to the court was McDonald’s argument that plaintiffs failed to diligently pursue discovery.  The Court found that as McDonald’s moved for summary judgment 3 weeks before the discovery deadline ended, there was nothing more plaintiffs could affirmatively do to preserve their claims and, “To hold otherwise would be to sanction the type of “gotcha” litigation that this Court so abhors.”</p>
<p style="text-align: justify;">Thanks to Mehreen Hayat for her contribution to this post.  Please contact <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.</p>