LHH v. Horton et al

Filing 54

OPINION AND ORDER: Court GRANTS BUT WITH RELIEF DIFFERENT THAN REQUESTED 47 Second Motion to Compel and for Rule 37 Sanctions against Defendants Horton and Gary Community School Corporation. Court AWARDS Plaintiff reasonable costs and attorney f ees and DIRECTS Plaintiff's attorney to file an affidavit of fees and costs by 4/27/2015. Response to be filed by 5/7/2015. Reply to be filed by 5/14/2015. Clerk of Court DIRECTED to SEAL Exhibit A to DE 47 . Plaintiff to file a redacted version of this exhibit by 4/27/2015. Signed by Magistrate Judge Paul R Cherry on 4/21/2015. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
L. H. H., a minor, by and through his
mother and next friend, ESMERALDA
HOLMAN HERNANDEZ,
Plaintiff,
v.
GERALD HORTON, ANGELO BRADSHAW,
CITY OF GARY, INDIANA, and GARY
COMMUNITY SCHOOL CORPORATION,
Defendants.

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Cause No.: 2:13-CV-452-PRC

OPINION AND ORDER
This matter is before the Court on Plaintiff’s Second Motion to Compel and for Rule 37
Sanctions against Defendants Horton and Gary Community School Corporation [DE 47], filed on
March 24, 2015. No response has been filed, and the time to do so has passed.
On December 2, 2014, this Court ordered Defendants to provide Plaintiff with complete
responses to a number of his written discovery requests. Despite this Order, as well as numerous
subsequent informal attempts by Plaintiff’s attorney to get these documents, Defendants Horton and
Gary Community School Corporation (“the School”) have not provided him with complete
responses to his interrogatories. The School’s responses to his requests for production, moreover,
are implausible; they consistently deny that the School has documents relating to this case. For
example, in response to a request for “[a]ll documents which support or relate to any of your
responses to any of Plaintiff’s Interrogatories and any Requests to Admit in this Case” the School
responded “Defendants have none.” DE 47-1 at 10.
Plaintiff asks that Defendants Horton and the School be ordered to provide him with
complete responses to his interrogatories and that the School be ordered to provide him with an

affidavit from a control group member of the School stating that it has no documents responsive to
his requests for production.
The Court finds this motion well taken in the main under Federal Rule of Civil Procedure
37, especially in light of Defendants’ failure to respond to this motion. See N.D. Ind. L.R. 7-1(d)(4)
(“The court may rule on a motion summarily if an opposing party does not file a response before the
deadline.”). The Court therefore GRANTS with relief different than requested Plaintiff’s Second
Motion to Compel and for Rule 37 Sanctions against Defendants Horton and Gary Community
School Corporation [DE 47].
With respect to the interrogatories, the Court ORDERS
(1)

that the School answer the interrogatories served upon it
through an authorized employee or employees who can
provide all the information known to it and

(2)

that Defendant Horton provide a sworn answer to Plaintiff’s
Interrogatory No. 7.

With respect to the requests for production, the Court FINDS that the responses are incomplete
under Federal Rule of Civil Procedure 34. That Rule requires the producing party to provide all
documents in its “possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). “[F]ederal courts have
consistently held that documents are deemed to be within the ‘possession, custody or control’ for
purposes of Rule 34 if the party has actual possession, custody or control, or has the legal right to
obtain the documents on demand.” United States v. Approximately $7,400 in U.S. Currency, 274
F.R.D. 646, 647 (E.D. Wis. 2011) (quoting Walls v. Paulson, 250 F.R.D. 48, 50 (D.D.C. 2008)
(citing In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995); Kifle v. Parks & History Ass’n,
No. Civ. A. 98–00048, 1998 WL 1109117, at *1 (D.D.C. Oct. 15, 1998))). The refrain “Defendants
have none” leaves the Court with significant doubts—especially in light of the responses’
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implausibility at many points—about whether the requested documents might be within the School’s
custody or control but not in its physical possession. Accordingly, the Court ORDERS the School
to perform a diligent search of its records and documents in its possession, custody, or control and
to provide complete responses to Plaintiff’s requests for production. It may well be that the School
again says that it does not have these documents. Of course, this Court “cannot compel a party to
disclose that which it does not have.” Slabaugh v. LG Electronics U.S.A., Inc., No.
1:12-CV-01020-RLY-MJ, 2015 WL 420012, at *3 (S.D. Ind. Jan. 30, 2015). But “if it comes to light
that any such responsive documents do exist,” the School and its attorneys “would be exposing
themselves . . . to sanctions pursuant to Rules 11 and 37 of the Federal Rules of Civil Procedure.”
Id. Morever, failure to comply with this Order may also result in sanctions under Federal Rule of
Civil Procedure 37(b).
The Court also AWARDS Plaintiff reasonable costs and attorney fees incurred in bringing
this motion. See Fed. R. Civ. P. 37(a)(5). The Court DIRECTS Plaintiff’s attorney to file an
affidavit of fees and costs by April 27, 2015. A response may be filed no later than May 7, 2015.
If a response is filed, Plaintiff may file a reply by May 14, 2015. These briefs shall deal solely with
the amount of fees. Argument about any other issue or any attempt to make a motion within these
briefs will be disregarded.
One final matter remains. Exhibit A to Plaintiff’s motion includes Plaintiff’s first and last
name. Plaintiff is a minor, and Federal Rule of Civil Procedure 5.2 provides that, “[u]nless the court
orders otherwise, in [a filing] that contains . . . the name of an individual known to be a minor, the
filing may only contain . . . the year of the individual’s birth [and] the minor’s initials.” Fed. R. Civ.
P. 5.2(a). The filing violates this Rule, and the Court accordingly DIRECTS the Clerk of Court to

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SEAL Exhibit A. The Court ORDERS Plaintiff to file a redacted version of this exhibit no later
than April 27, 2015.
SO ORDERED this 21st day of April, 2015.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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