AT&T Mobility LLC v. Shoukry

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

AT&T MOBILITY LLC, NEW :

CINGULAR WIRELESS PCS, LLC d/b/a :

AT&T MOBILITY, AT&T MOBILITY :

NEXT OPERATIONS, LLC, CRICKET :

WIRELESS LLC, and AT&T CORP., : Case No. 2:21-cv-00436

:

Plaintiffs, : CHIEF JUDGE ALGENON L. MARBLEY

:

v. : Magistrate Judge Vascura

:

TAMER SHOUKRY, :

:

Defendant. :

OPINION & ORDER

This matter is before the Court on the Plaintiffs’ Motion to Strike (ECF No. 17) and the

Defendant’s Motion for Summary Judgment (ECF No. 21). The Plaintiffs moved to strike Mr.

Shoukry’s second affirmative defense asserted in his Answer, which Mr. Shoukry opposes. (ECF

Nos. 17, 19). Mr. Shoukry also seeks summary judgment, which Plaintiffs oppose. (ECF Nos. 21,

25). For the following reasons, this Court GRANTS the Plaintiffs’ Motion to Strike and DENIES

WITHOUT PREJUDICE Defendant’s Motion for Summary Judgment.

I. BACKGROUND

A. Factual Background

Cell phones are ubiquitous in modern life. Nearly as ubiquitous is the experience of

entering into a contract with a wireless service provider as part of purchasing a new phone. AT&T,

including its subsidiaries like Cricket, is one such provider of wireless service. (ECF No. 1 ¶ 13).

AT&T sells new cell phones and other devices to individual consumers, as well as business

customers. (Id.). The company expends substantial resources to ensure that it can offer a reliable,

nationwide wireless network to its customers, as well as high-quality phones for its customers to

take advantage of that network. (Id. ¶ 14). AT&T is able to offer installment contracts, subsidies,

discounts, and other rebates that make its phones affordable to customers. (Id.). These inducements

depend on customers activating and using their phones with rate plans on the AT&T authorized

network for a minimum time period in compliance with their contracts. (Id.).

One of the most popular phone choices today is the Apple iPhone. An iPhone purchaser

can purchase a device that is either “locked” or “unlocked.” When a device is “locked,” the user

is bound to use a specific wireless carrier, such as AT&T. (Id. ¶ 15). AT&T and other providers

sell locked devices through installment plans, discounts, rebates, and subsidies that allow

consumers to make low monthly installment payments or otherwise pay a reduced purchase price.

(Id. ¶ 16). Locked iPhones contain SIM cards that are linked to the AT&T network, meaning these

devices will only function on that network. (Id. ¶ 17). AT&T’s business model of offering reduced

price devices is only sustainable if the locked iPhone devices are activated and used as intended

with the rate plans set forth in the purchaser’s contract. (Id. ¶ 18). If a user fails to make installment

payments, for instance, AT&T can enforce payment obligations by suspending or disconnecting

service to the phone. (Id.). Locking phones for a specified period is a common industry practice.

(Id. ¶ 20). If a customer wants an unlocked device, which would allow her to switch carriers as she

so chooses, then she can purchase an unlocked device from a retailer at full price, which can be

upwards of $1,000 for the newest version of the iPhone. (Id. ¶ 15).

AT&T sells wireless service on both prepaid and postpaid rate plans. (Id. ¶ 21). A prepaid

plan allows a customer to pay in advance for a specified amount of services like voice, text, and

data over a time period, while a postpaid plan bills customers using recurring monthly charges.

(Id.). Both postpaid and prepaid plans require entering into a contract with AT&T or a subsidiary

like Cricket. (Id. ¶ 22). These contracts prohibit the unauthorized unlocking of an AT&T locked

iPhone for a specific period of time. (Id. ¶ 23, 26–27, 36). For example, a locked iPhone sold under

a Credit Sales Contract requires a user to wait at least 60 days after purchase and satisfy other

contractual commitments, including making monthly payments and/or paying off the remaining

balance, before she may unlock her iPhone. (Id. ¶ 33). Prepaid users must wait at least six months

before their devices are eligible to be unlocked. (Id. ¶ 39). AT&T provides unlocking services free

of charge to eligible customers. (Id.).

All iPhones are equipped with preinstalled, proprietary and copyrighted software

belonging to Apple, including its iOS operating system. (Id. ¶ 47). On an unlocked device, a user

can always access this software. (Id. ¶ 48). When a device is locked by a carrier, however, the

carrier maintains the exclusive right to control access to the software through the “SIM Lock.”

(Id.). The SIM Lock restricts access to all functionality on locked devices when not connected to

the authorized network. (Id.). The SIM lock remains in effect until AT&T receives a valid “unlock

request” and subsequently unlocks the phone. (Id. ¶ 50). The SIM Lock works in interaction with

the SIM cards placed in cell phones, which allow the device to access cellular networks. (Id. ¶ 51).

SIM cards contain a unique 20-digit identifier know as an Integrated Circuit Card Identifier

(“ICCID”). (Id.). When a SIM card is placed in a phone, the card and the phone communicate,

allowing the phone to read information on the SIM card, including the ICCID. (Id.). Under typical

circumstances, a user cannot change the ICCID transmitted from the SIM card to the phone or use

more than one ICCID. (Id.).

AT&T’s SIM Lock works by reading data from the SIM card, including its ICCID. (Id.

¶ 55). If the SIM Lock identifies an ICCID that is associated with a valid AT&T SIM card, SIM

Lock allows full operation of the device. (Id.). If the ICCID number is not associated with a valid

AT&T SIM card, the iPhone will display a message that the SIM is not supported and will prevent

the user from accessing the iPhone or any of its applications. (Id.). When a user unlocks her phone

without authorization, circumventing SIM Lock, AT&T is harmed because this user can now take

her phone to a competing provider and stop making any payments to AT&T, despite owing AT&T

all or most of the money under her installment contract. (Id. ¶ 20). Essentially, she could put very

little money down to get a new iPhone from AT&T, unlock the device in violation of her contract,

and enter a new contract with a direct competitor. AT&T also loses its enforcement mechanism of

terminating cellular service to the device when the device is unlocked. (Id.). AT&T’s ability to

provide more affordable devices to its customers is undermined by unauthorized unlocking. (Id.

¶ 58).

Enter the Genie SIM. The Genie SIM is a small hardware circumvention device. (Id. ¶ 59).

The Genie SIM is inserted into the SIM card tray, where it sits between the metal contacts of a

non-AT&T SIM card and the iPhone’s internal metal contacts. (Id. ¶ 61). The Genie SIM can

monitor and intercept messages being sent between the SIM card and the iPhone, allowing it to

circumvent SIM Lock. (Id.). The Genie SIM allows a user to input an AT&T ICCID manually

from an AT&T SIM card that is not actually in the device; that ICCID number must be obtained

in addition to the device itself. (Id. ¶¶ 61–62). After that ICCID is input, the SIM lock is disabled,

the iPhone is unlocked, and the device remains unlocked as long as the Genie SIM remains in the

device. (Id.). These unauthorized AT&T ICCIDs will eventually become invalid, requiring a user

to obtain and input a new ICCID to continue using the unlocked iPhone. (Id. ¶ 62).

Defendant Tamer Shoukry maintains a Facebook profile with the user handle

“Tamermrwirelessohio.” (Id. ¶ 67). On January 28, 2020, AT&T investigators contacted Mr.

Shoukry on Facebook Messenger and inquired about purchasing Genie SIM devices. (Id.). Mr.

Shoukry then sold ten of these devices to the investigators for $15 each. (Id.). Mr. Shoukry

informed the investigators that the Genie SIM devices could unlock iPhone models from iPhone 7

through the iPhone 11. (Id.). He also confirmed that it would work with new AT&T iPhone

devices. (Id.). Mr. Shoukry then provided the investigators with instructions and instructional

videos on using the Genie SIM devices. (Id.). He transmitted a “current” ICCID to the investigators

over text message and informed them of an ICCID mining service that would allow them to

continue to obtain recent, unauthorized ICCIDs. (Id.). Mr. Shoukry also told investigators that he

was the owner of “Genie SIM” and sent a link to the website “unlockgeniesim.com.” (Id.). On

February 3, 2020, the investigators received ten Genie SIM devices via FedEx; Mr. Shoukry was

identified on the package as the sender. (Id. ¶ 68).

The investigators contacted Mr. Shoukry again on February 21, 2020 via Facebook

Messenger. (Id. ¶ 69). During this exchange, Mr. Shoukry “expressed his full understanding that

the Genie SIM devices would be utilized to unlock ineligible locked devices under contract” and

assured the investigators that their newly unlocked devices could not be relocked by AT&T, even

if the phones remained under contract or were otherwise not paid off. (Id.). Mr. Shoukry directed

investigators to the “geniesimhustlers” Facebook group and informed them that the group could

provide technical support for the devices. (Id.).

B. Procedural Background

On January 29, 2021, AT&T filed suit against Mr. Shoukry, alleging violations of the

Computer Fraud and Abuse Act, the Digital Millennium Copyright Act, and Ohio law. (ECF No.

1). Mr. Shoukry filed his answer to the complaint on March 2, 2021 and the parties were ordered

to appear for an initial conference before Magistrate Judge Vascura on March 23, 2021. (ECF Nos.

8, 10). On March 18, 2021, the Plaintiffs filed the Motion to Strike Defendant’s Second

Affirmative Defense that is now pending. (ECF No. 17). Mr. Shoukry opposes this Motion to

Strike. (ECF No. 19). On March 23, 2021, the Magistrate Judge issued the preliminary pretrial

order in the case, setting the close of discovery for April 22, 2022 and the dipositive motions

deadline for May 24, 2022. (ECF No. 18). Not long after the initial conference, Mr. Shoukry filed

his Motion for Summary Judgment. (ECF No. 21). The Plaintiffs opposed and he filed a reply in

further support of his motion. (ECF Nos. 25, 34). Both Plaintiffs’ Motion to Strike and Defendant’s

Motion for Summary Judgment are now ripe for consideration.

II. STANDARD OF REVIEW

A. Motion to Strike

Upon its own initiative or upon a motion by a party, a court may strike from a pleading an

insufficient defense or any “redundant, immaterial, impertinent, or scandalous matter” under Rule

12(f) of the Federal Rule of Civil Procedure. Motions to strike are entrusted to the “sound

discretion of the trial court, but are generally disfavored.” Kit Check, Inc. v. Health Care Logistics,

Inc., No. 2:17-cv-01041, 2018 WL 2971104, at *1 (S.D. Ohio June 13, 2018) (quoting Yates-

Mattingly v. Univ. of Cincinnati, No. 1:11-cv-753, 2013 WL 526427, at *1 (S.D. Ohio Feb. 11,

2013)). Indeed, “[s]triking pleadings is considered a drastic remedy to be used sparingly and only

when the purposes of justice so require.” Yates-Mattingly, 2013 WL 526427, at *1 (citing Brown

& Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953)). Thus, a litigant

advocating for a court to grant a motion to strike bears a heavy burden. See Wilson v. Riley

Contracting, Inc., No. 20-cv-04721, 2021 WL 1172244, at *2 (S.D. Ohio Mar. 29, 2021).

These motions should be denied unless “it is impossible for defendants to prove a set of

facts in support of the affirmative defense that would defeat the complaint the matter must be

stricken as legally insufficient.” Id. (quoting Williams v. Provident Inv. Counsel, Inc., 279 F. Supp.

2d 894, 906 (N.D. Ohio 2003)). If the insufficiency of the defense is not “clearly apparent” or if it

implicates factual issues that should be determined by a hearing on the merits, a court should deny

the motion to strike. Kit Check, 2018 WL 2971104, at *1 (citing Joe Hand Promotions, Inc. v.

Havens, No. 2:13-cv-0093, 2013 WL 3876176, at *1 (S.D. Ohio July 26, 2013)). Granting a motion

to strike may, however, be appropriate where it eliminates insufficient defenses that will save time

and expense that would otherwise be spent “litigating issues which would not affect the outcome

of the case.” Joe Hand, 2013 WL 3876176, at *1.

B. Motion for Summary Judgment

Federal Rule of Civil Procedure 56(a) provides, in relevant part, that summary judgment is

appropriate “if the movant shows that there is no genuine issue as to any material fact and the

movant is entitled to judgment as a matter of law.” In evaluating such a motion, the evidence must

be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must

be drawn in the non-moving party’s favor. See iU.S. Sec. & Exch. Comm’n v. Sierra Brokerage

Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013) (citing Tysinger v. Police Dep’t of City of Zanesville,

463 F.3d 569, 572 (6th Cir. 2006)). This Court then asks “whether ‘the evidence presents a

sufficient disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.’” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting

Anderson v. Liberty Lobby, 477 U.S. 242, 251–52 (1986)). “[S]ummary judgment will not lie if

the dispute is about a material fact that is ‘genuine,’ that is, if the evidence is such that a reasonable

jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. Evidence that is

“merely colorable” or “not significantly probative,” however, is not enough to defeat summary

judgment. Id. at 249–50.

On a motion for summary judgment, the initial burden rests upon the movant to present the

court with law and argument in support of its motion as well as identifying the relevant portions

of “‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). If this initial

burden is satisfied, the burden then shifts to the nonmoving party to set forth specific facts showing

that there remains a genuine issue for trial. See Fed. R. Civ. P. 56(e); see also Cox v. Ky. Dep’t of

Transp., 53 F.3d 146, 150 (6th Cir. 1995) (finding that after the burden shifts, the nonmovant must

“produce evidence that results in a conflict of material fact to be resolved by a jury”). In

considering the factual allegations and evidence presented in a motion for summary judgment, the

court “views factual evidence in the light most favorable to the non-moving party and draws all

reasonable inferences in that party’s favor.” Barrett v. Whirlpool Corp., 556 F.3d 502, 511 (6th

Cir. 2009). Self-serving affidavits alone, however, are not enough to create an issue of fact

sufficient to survive summary judgment. Johnson v. Wash. Cnty. Career Ctr., 982 F. Supp. 2d 779,

788 (S.D. Ohio 2013). “The mere existence of a scintilla of evidence to support [the non-moving

party’s] position will be insufficient; there must be evidence on which the jury could reasonably

find for the [non-moving party].” Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995); see also

Anderson, 477 U.S. at 251.

III. LAW & ANALYSIS

A. Plaintiffs’ Motion to Strike

Plaintiffs move pursuant to Rule 12(f) of the Federal Rules of Civil Procedure to strike Mr.

Shoukry’s second affirmative defense—that the Plaintiffs failed to join necessary parties—on the

basis that the defense is legally insufficient, will not impact the resolution of the case, and promotes

judicial economy. The Defendant opposes the motion to strike, arguing that the underlying

conspiracy to defraud in this case involves customers who are under contract with the Plaintiffs,

making them necessary parties to the claim for conspiracy to defraud brought against Mr. Shoukry.

(ECF No. 19). In response, the Plaintiffs argue that they are not required to name individuals who

purchased the Genie SIM from Mr. Shoukry as defendants in this suit. (ECF No. 20 at 1–2). The

Plaintiffs note that long-standing case law renders unlawful the sale of devices, like the Genie SIM,

and so it can proceed solely against someone it believes sold the devices. (Id.).

A party will be considered a “necessary” party to litigation when the absence of that party

will impair a court’s ability to grant relief or if the person claims an interest at issue in the litigation.

See Fed. R. Civ. P. 19(a). If joinder of that party is not feasible, a court must then determine

whether the action should proceed regardless or whether the action should be dismissed. Fed. R.

Civ. P. 19(b). The failure to join a party required by Rule 19(b) is an unwaivable defense that a

defendant may raise at any time before the conclusion of a trial. Fed. R. Civ. P. 12(h)(2). Some

courts have found that striking this defense for a failure to identify specific necessary parties has

serves no practical purpose prior to discovery. See, e.g., Savage v. Citibank N.A., No. 14-cv-03633,

2015 WL 4880858, at *4 (N.D. Cal. Aug. 14, 2015). Importantly, this issue is before this Court on

a motion to strike, rather than a motion for joinder. Typically, the burden rests on a defendant to

show that parties are required to be joined under Rule 19. See, e.g., Eagle Realty Invs., Inc. v.

Dumon, No. 18-cv-362, 2019 WL 608830, at *2 (S.D. Ohio Feb. 13, 2019). Since this issue arises

on a motion to strike, the burden will instead rest on Plaintiffs. To succeed on a motion to strike,

then, the Plaintiffs must show, as a legal matter, that purchasers of the Genie SIM are not necessary

parties for purposes of this litigation.

The Plaintiffs argue that joinder of third parties as defendants is not necessary merely

because these third parties may also be liable for the underlying conduct in concert with Mr.

Shoukry. Mr. Shoukry specifically challenges the failure to join additional defendants on the claim

of a conspiracy to defraud. (ECF No. 19). In turn, Plaintiffs argue that it is well established that is

not necessary to join all tortfeasors as defendants where liability is joint and several. (ECF No. 20

at 2). “[A] person’s status as a joint tortfeasor does not make that person a necessary party.”

PaineWebber, Inc. v. Cohen, 276 F.3d 197, 204 (6th Cir. 2001); see also Temple v. Synthes Corp.,

498 U.S. 5, 8 (1990) (holding joint tortfeasors were not necessary parties under Rule 19(a));

Williamson v. Recovery Ltd. P’ship, No. 2:06-CV-00292, 2014 WL 186898, at *5 (S.D. Ohio Jan.

14, 2014), aff’d, 826 F.3d 297 (6th Cir. 2016) (“[I]t is axiomatic that joint tortfeasors, including

those in an agency relationship, are not indispensable parties.”); Joe Hand, 2013 WL 3876176, at

*3 (“The mere fact that a defendant points to the liability of another person does not render that

other person indispensable to the litigation.”); Malibu Media, LLC v. Patel, No. 2:14-CV-559,

2015 WL 12698035, at *1 (S.D. Ohio May 12, 2015) (“[T]he possibility of related third-party

liability—either by way of joint liability, contribution or vicarious liability—does not require the

joinder of those parties to a single suit.”). As noted by this Court in Peres v. Third Federal Savings

& Loan Association of Cleveland, should a third party be liable to plaintiff or defendant, “there are

other avenues in which they can be held accountable,” including Rule 14 of the Federal Rules of

Civil Procedure, which allows a defendant to file a third-party complaint. No. 1:18-cv-18, 2019

WL 1318130, at *3 (S.D. Ohio Mar. 22, 2019).

Turning to the prongs of Rule 19, this Court is satisfied that Mr. Shoukry’s arguments as

to joinder of indispensable parties are legally insufficient. Proceeding solely against Mr. Shoukry

will allow Plaintiffs the full relief they seek, including on their conspiracy to defraud claim. Mr.

Shoukry has raised only the issue of shared liability, not any shared interests that could be

compromised by a failure to join unnamed, unidentified co-conspirators. Moreover, this Court

does not see how disposing of Plaintiffs’ claims against Mr. Shoukry that stem from his alleged

sales of the Genie SIM could impair or impede Plaintiffs’ customers from protecting their own

interests. This Court also does not see how the failure to join Plaintiffs’ customers who may have

purchased a Genie SIM from Mr. Shoukry will place any existing party at substantial risk of

incurring double, multiple, or otherwise inconsistent obligations. As such, these unidentified

customers are not required to be joined under Rule 19 of the Federal Rules of Civil Procedure and

Mr. Shoukry’s affirmative defense to this end is legally insufficient. This Court thereby GRANTS

Plaintiffs’ Motion to Strike Defendant’s Second Affirmative Defense.

B. Defendant’s Motion for Summary Judgment

When a party moves for summary judgment, the Federal Rules of Civil Procedure place a

burden on that party to demonstrate that there is no genuine issue as to any material fact and, as a

result, that the party is entitled to judgment as a matter of law. This burden includes identifying

the relevant portions of “‘the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine

issue of material fact.” Celotex, 477 U.S. at 323 (quoting Fed. R. Civ. P. 56). Only once a party

has so carried its initial burden will the burden shift to the non-moving party to raise specific facts

that demonstrate a genuine issue of material fact remains.

Defendant’s Motion for Summary Judgment, filed with the aid of counsel, is only three

pages in length and attaches a “Proposed Undisputed Facts,” as well as a four-page affidavit of the

Defendant. (ECF No. 21). This motion opens with the text of Rule 56 and a single case citation as

to a movant’s burden, but otherwise contains no citations to the record, other evidence, or legal

authorities. It contains only unsupported assertions that Defendant believes entitle him to summary

judgment and dismissal of this suit. His Proposed Undisputed Facts likewise are unsubstantiated

by any evidence, but for the self-serving affidavit of the Defendant himself. As this Court has held

previously, self-serving affidavits alone cannot create an issue of fact sufficient to survive

summary judgment. Johnson v. Wash. Cnty. Career Ctr., 982 F. Supp. 2d 779, 788 (S.D. Ohio

2013). Nor can such a document establish that no issue of material fact exists. His motion does not

address several of Plaintiffs’ claims against him specifically, let alone demonstrate that no issue

of material fact exists. Furthermore, it would be difficult to know what factual issues even exist in

this case, given that little to no discovery has occurred to date.1 Defendant’s cursory and

unsubstantiated motion, filed before any real discovery, fails to meet the burden placed on him by

Rule 56. Accordingly, his Motion for Summary Judgment is DENIED WITHOUT

PREJUDICE. Defendant is not foreclosed from filing a future motion for summary judgment in

accordance with Rule 56.

Furthermore, Plaintiffs’ response in opposition includes a Rule 56(d) declaration. Rule

56(d) of the Federal Rules of Civil Procedure establishes the proper procedure when a party asserts

that additional discovery is necessary to respond to a motion for summary judgment. Under Rule

56(d), the nonmovant must show by affidavit or declaration that it cannot present facts essential to

justifying its opposition to summary judgment because additional discovery is necessary. Fed. R.

Civ. P. 56(d). A court may then defer consider the motion for summary judgment, deny the motion,

1 Defendant filed his motion fifteen days after the parties’ initial disclosures were due and just

under a year before the close of discovery. (ECF No. 18). Plaintiff AT&T represents that it has

propounded one set of discovery requests, to which the Defendant “provided incomplete

responses.” (ECF No. 25 at 10). No depositions have been taken. (Id.).

allow time to obtain affidavits or declaration or otherwise take discovery, or issue any other

appropriate order. Id.

Rule 56(d) is intended to provide a mechanism for the parties and the court “to give effect

to the well-established principle that ‘the plaintiff must receive a full opportunity to conduct

discovery to be able to successfully defeat a motion for summary judgment.’” Chubb Custom Ins.

Co. v. Grange Mut. Cas. Co., No. 2:07-CV-1285, 2012 WL 1340369, at *2 (S.D. Ohio April 17,

2012) (quoting Cardinal v. Metrish, 564 F.3d 794, 797 (6th Cir. 2009)). Granting summary

judgment is inappropriate where a party has not had sufficient opportunity to conduct discovery.

See Dish Network LLC v. Fun Dish Inc., No. 1:08-CV-1540, 2011 WL 13130841, at *3 (N.D. Ohio

Aug. 12, 2011).

An affidavit or declaration submitted under Rule 56(d) must “indicate to the district court

[the party’s] need for discovery, what material facts [the party] hopes to uncover, and why [the

party] has not previously discovered the information.” Clifford v. Church Mut. Ins. Co., No. 2:13-

CV-853, 2014 WL 5529664, at *2 (S.D. Ohio Nov. 3, 2014) (alterations in original) (quoting

Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000)). A district court that denies a

Rule 56(d) request for discovery relying only on general and conclusory statements does not abuse

its discretion. See Snow v. Kemp, No. 10-2363, 2011 WL 345864, at *1 (W.D. Tenn. Feb. 2, 2011)

(citing Ironside v. Simi Valley Hosp., 188 F.3d 350, 354 (6th Cir. 1999)). AT&T submitted a

declaration that details the discovery undertaken to date, AT&T’s outstanding discovery requests

and needs, and how these discovery needs relate to the underlying claims at issue and investigation

efforts thus far (ECF No. 25-2). The declaration complies with Rule 56(d). Therefore, even if this

Court had not already denied the Defendant’s Motion for Summary Judgment, this Court would

have denied it on the alternative grounds of Plaintiff’s legitimate need for discovery under Rule

56(d). Discovery has just begun, the Plaintiffs have not been dilatory in their discovery efforts, it

is unclear the extent to which Mr. Shoukry is using his Motion for Summary Judgment to escape

discovery, and the ability to take discovery will impact this Court’s ability to rule on a future

motion for summary judgment on a more complete record. See CenTra, Inc. v. Estrin, 538 F.3d

402, 420 (6th Cir. 2008) (considering factors such as whether desired discovery could change a

ruling, how long discovery has lasted, whether the party seeking relief was dilatory in its discovery

efforts, and whether the movant was responsive to discovery requests when assessing whether to

grant relief under Rule 56(d)).

IV. CONCLUSION

For the reasons discussed above, this Court GRANTS the Plaintiffs’ Motion to Strike (ECF

No. 17) and DENIES WITHOUT PREJUDICE Defendant’s Motion for Summary Judgment

(ECF No. 21).

IT IS SO ORDERED.

ALGENON ZL. MARBL

CHIEF UNITED STATES DISTRICT JUDGE

DATE: July 26, 2021

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