Cote et al v. Hopp et al
Filing
133
OPINION by U.S. Magistrate Judge Byron Cudmore: Plaintiffs' Motion to Vacate Defendants' Hopp & Huston Motion to Compel 114 is DENIED. Plaintiffs must comply with the Opinion entered 8/16/2011 107 , and must answer the Defendants' Interrogatories and produce documents responsive to Defendants' Request to Produce as set forth in the Motion to Compel by October 7, 2011. See written order. (Copy of Opinion sent this date via U.S. Mail to pro se Plaintiffs at their listed address.) (LB, ilcd)
E-FILED
Tuesday, 20 September, 2011 11:44:56 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, PEORIA DIVISION
EVELYN COTE and ALFRED COTE,
Plaintiffs,
v.
TOM HOPP et al.,
Defendants.
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No. 09-CV-1060
OPINION
BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Plaintiffs’ Motion to Vacate
Defendant’s Hopp & Huston Motion to Compel (d/e 114) (Motion). For the
reasons set forth below, the Motion is DENIED.
The Plaintiffs ask the Court to vacate its Opinion entered August 16,
2011 (d/e 107) (Opinion). The Opinion allowed Defendants Tom Hopp and
Sarah Stuecker’s Motion to Compel (d/e 95) (Motion to Compel).1 The
Plaintiffs state that they did not receive a copy of the Motion to Compel by
mail. The certificate of service, however, shows that the Motion to Compel
was mailed on July 13, 2011, to Plaintiffs at 1401 Avenue E, Fort Madison,
Iowa 52627. Motion to Compel, Certificate of Service. That was the
1
Sarah Stuecker was previously known as both Sarah Strope and Sarah
Houston.
Page 1 of 3
Plaintiff’s address on file with the Court in this case at that time.2 The
Plaintiffs are therefore presumed to have received the Motion to Compel.
Boomer v. AT & T Corp., 309 F.3d 404, 415 n. 5 (7th Cir. 2002). Hopp and
Stuecker have further presented evidence that their counsel mailed the
Motion to Compel and all other pleadings and discovery in this case to the
Plaintiffs at their address of record in this case, and that none has been
returned by the U.S. Postal Service. Response to Plaintiffs’ Motion to
Vacate Defendants Hopp & Huston’s Motion to Compel (d/e 11), Exhibit 1,
Affidavit of Karen J. Johnson, ¶¶ 3-4. The Plaintiffs have presented no
evidence to rebut the presumption. A bare denial of receipt is not
sufficient to overcome the presumption. See Laouini v. CLM Freight Lines,
Inc., 586 F.3d 473, 479-80 (7th Cir. 2009); In re Longardner & Associates,
Inc., 855 F.2d 455, 459 (7th Cir. 1988). The Plaintiffs, therefore, were
properly served with the Motion to Compel.
As explained in the Opinion, the Plaintiffs were required to respond to
the Motion to Compel within fourteen days. Opinion, at 1. They did not.
The Court, therefore, properly presumed that the Plaintiffs had no
opposition to the Motion to Compel. Id.; see Local Rule 7.1(B)(2). The
2
On August 23, 2011, Plaintiffs provided the parties and the Court with their new
address.
Page 2 of 3
Plaintiffs, further, have presented nothing to show that they have a good
faith basis to oppose the Motion to Compel.
WHEREFORE, Plaintiffs’ Motion to Vacate Defendant’s (sic) Hopp &
Huston Motion to Compel (d/e 114) is DENIED. Plaintiffs must comply with
the Opinion entered August 16, 2011 (d/e 107), and must answer the
Defendant’s’ Interrogatories and produce documents responsive to
Defendants’ Request to Produce as set forth in the Motion to Compel by
October 7, 2011.
ENTER:
September 20, 2011
s/ Byron G. Cudmore
BYRON G. CUDMORE
UNITED STATES MAGISTRATE JUDGE
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