Wayson v. Rundell

Filing 95

Order on Motion to Compel

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

MARK N. WAYSON,
Plaintiff,
vs.
LINDA RUNDELL,
Defendant.

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4:06-cv-00001 JWS
ORDER AND OPINION
[Re:

Motion at Docket 71]

I. MOTION PRESENTED
At docket 71, plaintiff Mark Wayson moves to reopen discovery to the extent of
issuing an order to compel production pursuant to Federal Rule of Civil Procedure
37(a). At docket 81, defendant Linda Rundell opposes the motion. Plaintiff replies at
docket 82. Oral argument was not requested, but it would not assist the court.

II. BACKGROUND
On January 13, 2006, Mark Wayson filed an amended complaint in Superior
Court for the State of Alaska, Fourth Judicial District at Fairbanks, alleging that Linda
Rundell, as the acting state director of the Bureau of Land Management (“BLM”),
damaged his reputation and violated his constitutional rights by finding that he
committed a crime against Carol Hammond, a BLM employee, and by obstructing the
investigation of Wayson’s complaint of misconduct by Robert Schneider, another BLM

employee. Plaintiff’s complaint solely asserts a Bivens1 claim against defendant Rundell
in her individual capacity. Defendant removed this matter to federal court pursuant to
28 U.S.C. § 1442(a)(1) and 28 U.S.C. § 2679(d)(2).2 This court has federal question
jurisdiction under 28 U.S.C. § 1331.
On February 15, 2007, the court entered a scheduling and planning order,
stating that discovery must be completed by October 1, 2007, and that discovery
motions were due by October 31, 2007.3 On November 5, 2007, plaintiff filed a motion
to reopen discovery and compel production. Defendant opposes the motion.
III. DISCUSSION
To begin with, the motion at docket 71 is not timely and may be denied on that
basis. Even were the motion timely, it lacks merit for the reasons below. The motion to
compel discovery pursuant to Federal Rule of Civil Procedure 37(a), which provides that
“[i]f a party fails to make a disclosure required by Rule 26(a), any other party may move
to compel disclosure and for appropriate sanctions.” Rule 37 requires that a motion to
compel include a “certification that the movant has in good faith conferred or attempted
to confer with the party not making the disclosure in an effort to secure the disclosure
without court action.”4 In addition, the Local Rules for the District of Alaska provide that
absent exigent circumstance, counsel must confer in person or by phone “in an effort to
resolve any discovery dispute before filing a motion to compel discovery.”5 Plaintiff’s
motion to compel does not include the requisite certification that plaintiff has in good
faith attempted to confer with defendant’s counsel in the effort to secure the requested
disclosures without court action.

1

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971).
2

Section 1442(a)(1) provides for removal of cases in which an officer of the United
States is sued in his or her “individual capacity for any act under color of such office.”
3

Doc. 43.

4

Fed. R. Civ. P. 37(a)(2)(A).

5

D.Ak.LR 37.1(a)

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Defendant opposes the motion on the grounds that she does not possess the
documents plaintiff has requested. Pursuant to Federal Rule of Civil Procedure 34(a),
parties to an action may request another party to produce documents which “contain
matters within the scope of Rule 26(b) and which are in the possession, custody or
control of the party upon whom the request is served.” Defendant argues that while
plaintiff is suing defendant as an individual, the documents plaintiff has requested “are
retained by the Bureau of Land Management (“BLM”), the United States Attorney’s
Office, the Department of Interior’s Office of the Inspector General, or Pamela Stuart.”6
Defendant further argues that while she served as Associate BLM Director for Alaska
from December 1999 through December 2002, she transferred to New Mexico in
December 2002 and does not possess the BLM files for the Alaska Division. It also
appears that many of the requested documents retained by either defendant or her
counsel have been provided to plaintiff.
Plaintiff does not provide any evidence that defendant does indeed possess any
of the requested documents, but rather suggests that defendant and her attorney are
required to produce documents which are in the possession of the BLM and the United
States Attorney’s Office, which are not parties to this case. Defendant’s suggestion
does not comport with the discovery rules set forth in the Federal Rules of Civil
Procedure. Because plaintiff has not made any showing that the requested documents
are in the possession, custody or control of defendant and because defendant did not
make the requisite showing of a good faith attempt to confer, the court will deny
plaintiff’s motion to compel.
IV. CONCLUSION
For the reasons set out above, plaintiff’s motion to compel at docket 71 is
DENIED.
DATED at Anchorage, Alaska, this 24th day of March 2008.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

6

Doc. 47 at 3.

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