Brown v. Hertz et al
Filing
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ORDER granting in part and denying in part 82 Motion to Compel; finding as moot 85 Motion to Bar; finding as moot 87 Motion to Supplement; granting 92 Motion for Leave to File. See attached document for details. Signed by Magistrate Judge Philip M. Frazier on 11/3/11. (ajt)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JERAMEY R BROWN,
Plaintiff,
vs.
ROBERT HERTZ, et al.,
Defendants.
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Case No. 3:07-cv-00117-PMF
ORDER
FRAZIER, Magistrate Judge:
Before the Court are the plaintiff’s (Doc. 82) motion to compel and (Doc. 87) motion to
supplement. Also before the Court are the defendant’s (Doc. 85) motion to bar and (Doc. 92)
motion for leave to file counter-affidavits. For the following reasons, the plaintiff’s (Doc. 82)
motion to compel is granted in part and denied in part; the plaintiff’s (Doc. 87) motion to
supplement is denied as moot; the defendants’ (Doc. 85) motion to bar is denied as moot; and
the defendants’ (Doc. 92) motion for leave to file counter-affidavits is granted.
A. Doc. 82 – Motion to Compel
The plaintiff, first, moves the Court for an order compelling the defendants to respond to
his requests for production. Generally, a party to litigation may serve requests for production
pursuant to Rule 34 of the Federal Rules of Civil Procedure. See FED. R. CIV. P. 34. “The party
to whom the request is directed must respond in writing within 30 days after being served.” Id.
Objections, if any, are generally considered waived if the respondent to the requests for
production fails to timely respond. See id. A party seeking discovery may move for an order
compelling production if a party fails to respond that inspection will be permitted or fails to
permit inspection, as requested under Rule 34. FED. R. CIV. P. 37(a)(3)(B)(iv). Here, the plaintiff
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served his requests for production of documents on September 27, 2011 and, apparently, has not
received any type of response from the defendants. See Doc. 82 at 1. The defendants did not
address the failure to produce documents in their (Doc. 88) response to the instant motion to
compel. Accordingly, the (Doc. 58) motion to compel will be granted with respect to the
plaintiff’s request for production (Doc. 82 at 8-15). The defendants are ordered to respond the
request for production within 30 days of this order.
Next, the plaintiff moves the Court for an order compelling the defendants to respond to
his interrogatories. A party may serve on the other party written interrogatories. See FED. R. CIV.
P. 33. “The responding party must serve its answers and any objections within 30 days after
being served with the interrogatories.” Id. Objections, if any, are generally considered waived if
the respondent to the interrogatories fails to timely respond. See id. A party seeking discovery
may move for an order compelling production if a party fails to answer an interrogatory
submitted under Rule 33. FED. R. CIV. P. 37(a)(3)(B)(iii).
Here, by the defendant’s own
admission, the plaintiff served his request for production on September 30, 2011, and the
defendant did not respond until December 11, 2011. Doc. 88 at 2. The defendant has not
demonstrated good cause for the failure to timely object. Therefore, the defendant’s untimely
objections are waived, and the (Doc. 58) motion to compel will be granted with respect to the
plaintiff’s interrogatories (Doc. 82 at 23-30).
The defendants are ordered to answer the
interrogatories within 30 days of this order.
Lastly, the plaintiff requests that the Court enter an order compelling defendant Hertz to
“answer fully” four of his requests for admission. A party may serve written requests to admit
the truth of any matters within the scope of the lawsuit. See FED. CIV. P. 36. “Each matter must
be separately stated.” Id.
“A request to admit the genuineness of a document must be
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accompanied by a copy of the document unless it is, or has been, otherwise furnished or made
available for inspection and copying.” Id. Here, defendant Hertz has timely objected to the four
requests in dispute as follows:
2. Between January 11, 2006 and July 10, 2008, Plaintiff Jeramey Brown
made a plethora of complaints to you about his treatment and constitutional rights
being violated while at Madison County Jail
RESPONSE: Defendant Hertz objects to Paragraph 2 as said Request is
incomplete and fails to coherently set for[th] a Request to which this Defendant
can respond. Specifically, said request fails to specify the document to which
Plaintiff is referring. Federal Rules of Civil Procedure Rule 26(a)(2) provides “A
Request to Admit the genuineness of a document must be accompanied by a copy
of the document unless it is, or has been, otherwise furnished or made available
for inspection and copying.”
3. Between January 11, 2006 and July 10, 2008, Jail Superintendent Joe
Gulash would frequently discuss with you, Plaintiff Jeramey Brown’s multitude
of complaints, about his status in the Jail, and his ongoing treatment.
RESPONSE: Defendant Hertz objects to Paragraph 3 as this Request
improperly seeks this Defendant to admit a fact that pertains to other Defendants
and said Request improperly requires Defendant to admit an alleged fact that is
outside his personal knowledge and, therefore, calls for speculation and
conjecture and is burdensome and oppressive.
4. During this period, you, Defendant Lakin, Wells, Gulash became
intimately involved in Plaintiff Jeramey Brown’s criminal proceedings …
meaning, but not limited to, contacting the Madison County States Attorney’s
Office inquiring about the strength of their case against Plaintiff, offering your
office’s assistance in the successful prosecution of Plaintiff, interviewing or
contacting state witnesses, providing state witnesses with copies of their prior
statements/ or testimony, contacting Judge James Hackett in regards to Plaintiff’s
criminal proceedings, photocopying Plaintiff Jeramey Brown’s outgoing mail for
the Granite City Police Department and Madison County State’s Attorney’s
Office, listening in on Plaintiff’s legal calls with his attorneys, interfering with
Plaintiff speaking with attorney Don Groshong, and intimately discussing with
Plaintiff’s defense attorney John J O’Gara both Plaintiff’s criminal case and 2004
civil case.
RESPONSE: Defendant Hertz objects to Paragraph 4 as it [is] a compound
question and according to Federal Rules of Civil Procedure 36(a), “Each matter of
which an admission is requested shall be separately set forth.” This defendant
further objects to Paragraph 4 as this Request improperly seeks this Defendant to
admit a fact that pertains to other Defendants, and said Request improperly
requires Defendant to admit an alleged fact that is outside his personal knowledge
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and, therefore, calls for speculation and conjecture and is burdensome and
oppressive.
6. Prior to January 11, 2006, or during the time Plaintiff was detained at
the Madison County Jail, you [were] aware that if Plaintiff would be found ‘not
guilty’ after his criminal trial, that it had the potential of having significant impact
on his 2004 civil action, especially in regards to damages.
RESPONSE: Defendant Hertz objects to Paragraph 6 as it is [a] compound
question and according to Federal Rules of Civil Procedure 36(a), “Each matter of
which an admission is requested shall be separately set forth.” Subject to the
objection, Defendant Hertz denies that he had knowledge that if Plaintiff was
found not guilty at his criminal trial that it would have a significant impact on
Plaintiff’s 2004 pending civil suit.
Doc. 88-4 at 1-4.
Defendant Hertz’s objection with respect to paragraph 2 of the plaintiff’s request to admit
is overruled. The plaintiff did not request that the defendant admit to the genuineness of a
document. Defendant Hertz is directed to answer the request to admit.
Defendant Hertz’s objection with respect to paragraph 3 of the plaintiff’s request to admit
is overruled. The plaintiff is asking is whether the defendant had the specific conversations with
Jail Superintendent Joe Gulash, a fact that would not require defendant Hertz to speculate and
would not be outside of the scope of defendant Hertz’s personal knowledge. Defendant Hertz is
directed to answer the request to admit.
Defendant Hertz’s objection with respect to paragraph 4 of the plaintiff’s request to admit
is sustained. The Court agrees that this request to admit improperly sets forth multiple requests
to admit in violation of Rule 36. See FED. R. CIV. P. 36(a)(2).
The Court finds as moot defendant Hertz’s objection with respect to paragraph 6 of the
plaintiff’s request to admit. The Court fails to see how paragraph 6 contains more than one
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request to admit, but the point is moot because defendant Hertz has provided an answer to the
request.
B. Doc. 92 – Motion for Leave
In the (Doc. 92) motion for leave, the defendant’s seek permission to file additional
affidavits in support of their (Doc. 69) motion for summary judgment.
Specifically, the
defendants seek to file counter-affidavits to the affidavits of Larry Greer and Mathew Davis.
The interests of justice will be served by permitting the defendants to supplement their evidence.
The plaintiff has failed to demonstrate how the request to permit the defendants to supplement
their motion with additional evidence was made in bad faith or will prejudice him. The (Doc.
92) motion is granted. The defendants shall electronically file the additional affidavits within
five (5) days of this order.
C. Doc. 85 – Motion to Bar
The (Doc. 85) motion to bar seeks separate relief related to the affidavits of Larry Greer
and Mathew Davis. Because the Court is granting the (Doc. 92) motion for leave to file counteraffidavits, the (Doc. 85) motion to bar is denied as moot.
D. Doc. 87 – Motion to Supplement
The plaintiff’s (Doc. 87) motion to supplement his response to the (Doc. 69) motion for
summary judgment is related to the Court’s previous order construing the affidavits of Larry
Greer and Mathew Davis as a response (Doc. 86) to the (Doc. 69) motion for summary
judgment. The plaintiff has since been granted another opportunity to file a response to the
pending motion for summary judgment. See Docs. 141, 150.
supplement is denied as moot.
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The (Doc. 87) motion to
E. Conclusion
For the forgoing reasons, the plaintiff’s (Doc. 82) motion to compel is granted in part
and denied in part; the plaintiff’s (Doc. 87) motion to supplement is denied as moot; the
defendants’ (Doc. 85) motion to bar is denied as moot; and the defendants’ (Doc. 92) motion for
leave to file counter-affidavits is granted.
SO ORDERED.
DATED: November 3, 2011.
/s/ Philip M. Frazier
PHILIP M. FRAZIER
UNITED STATES MAGISTRATE JUDGE
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