Nixon et al v. Costner Excavating Inc et al

Filing 25

ORDER denying without prejudice pltfs' 19 Motion to Compel; granting defts' 21 Motion to Extend Time. Signed by Judge Billy Roy Wilson on 1/6/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
CORY NIXON, et al.,
EACH INDIVIDUALLY and on BEHALF
of OTHERS SIMILARLY SITUATED
vs

PLAINTIFFS

4:11-CV-00578-BRW

COSTNER EXCAVATING, INC.,
d/b/a COSTNER GAS AND OIL FIELD SERVICES,
and RHETT COSTNER, individually and
as Owner/Manager of Costner Excavating

DEFENDANTS

ORDER
Pending is Plaintiff’s Motion to Compel (Doc. No. 19) and Defendant’s Motion to Enlarge
Time (Doc. No. 21). For the following reasons, Plaintiff’s Motion is DENIED without prejudice
and Defendant’s Motion is GRANTED.
Both of these Motions arise out of the same set of facts. On November 8, 2011, Separate
Plaintiff Cory Nixon (“Plaintiff) propounded his Interrogatories and Requests for Production of
Documents on Separate Defendant Costner Excavating, Inc.(“Defendant). Under Federal Rule of
Civil Procedure 30, the deadline for responding was December 8, 2011. On December 7, 2011,
Defendant served its responses to the Interrogatories and Requests for Production of Documents.1
On December 19, 2011, Plaintiff’s counsel sent a letter to Defendant’s counsel informing
them that they failed to respond to 7 interrogatories and 23 requests for production and that Plaintiff
deemed all objections waived.2 On December 21, 2011, Defendant’s counsel sent an e-mail to
Plaintiff’s counsel explaining that she “inadvertantly sent an uncompleted draft of the responses.”3

1

Doc. No. 19, Ex. B.

2

Doc. No. 19, Ex. C.

3

Doc. No. 19, Ex. D.
1

Counsel attached the responses and objections she intended to send, which contained objections to
13 of the interrogatories and requests for production.4
1.

Motion to Enlarge

On December 22, Defendant filed a Motion to Enlarge Time to Respond to Interrogatories
and Requests for Production of Documents or to Excuse Failure to Object Due to Clerical Error
(Doc. No. 21). In the Motion, Defendant’s counsel explains that her failure to submit complete
responses and objections to Plaintiff’s Interrogatories and Requests for Production was due to a
clerical error and that upon learning that an incomplete response had been sent, she promptly
submitted the correct version. Defendant argues that “no delay or hardship [] has been worked upon
the Plaintiffs by the relatively brief delay in Plaintiffs obtaining the correct responses.”5 I agree.
I find that no prejudice has been suffered by Plaintiff.6 Accordingly, Defendant’s Motion to Enlarge
is GRANTED.
2.

Motion to Compel

Plaintiff filed a Motion to Compel (Doc. No. 19) on December 22, 2011, asking this Court
to issue an Order compelling Defendant to fully and completely respond to the Interrogatories and
Requests for Production that he did not timely object to in the December 7 responses. Based on my
above findings, Plaintiff’s Motion to Compel is DENIED without prejudice. If Plaintiff has a
separate basis for supporting his Motion to Compel beyond his instant argument, he may file a
separate motion.

4

Doc. No. 19, Ex. E.

5

Doc. No. 22.

In their Response to Defendant’s Motion to Enlarge, Plaintiffs admit that had counsel
for Defendant asked for additional time to respond to discovery, they would have agreed.
6

2

CONCLUSION
Therefore, Plaintiff’s Motion to Compel (Doc. No. 19) is DENIED without prejudice and
Defendant’s Motion to Enlarge (Doc. No. 21) is GRANTED.
IT IS SO ORDERED this 6th day of January, 2012.

/s/Billy Roy Wilson
UNITED STATES DISTRICT JUDGE

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