Lemaster v. Collins Industries, Inc. et al
Filing
165
MEMORANDUM AND ORDER denying 104 Motion to Compel; granting in part and denying in part 121 Motion for Discovery; granting 156 Motion to Clarify. Signed by Magistrate Judge Kenneth G. Gale on 2/14/2013. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TOM C. SMITH, TRUSTEE OF
THE BANKRUPTCY ESTATE OF
DONNA AND TERRY
LEMASTER,
)
)
)
)
)
Plaintiff-Intervenor,
)
)
v.
)
)
COLLINS BUS CORPORATION, )
)
Defendant.
)
______________________________ )
Case No. 11-CV-2128 JTM/KGG
ORDER ON MOTION TO COMPEL
Now before the Court is Plaintiff’s Motion to Compel Discovery Responses
(Doc. 104), Defendant’s Motion to Determine Sufficiency of Reply to Requests for
Admissions (Doc. 121), and Plaintiff/Intervenor’s Motion to Clarify the Court’s
October 22, 2012 Order Compelling Former Plaintiff Lemaster to Provide
Supplemental Discovery Responses (Doc. 156). Having reviewed the submissions
of the parties, including the Court’s requested supplementary briefing, the Court is
prepared to rule on these motions.
BACKGROUND
Plaintiff contends he was injured when he fell from a bus, manufactured by
Defendant, that he had been hired to transport from Kansas to Pennsylvania. (Doc.
1, at 6-7.) Plaintiff brings various negligence claims against Defendant, including
strict liability failure to warn, negligent design, manufacture and distribution of a
defective product, and supplying a dangerous chattel. (See generally, Id.) Plaintiff
alleges that he sustained serious injuries as a direct and proximate result of
Defendant’s negligence. (Id.) Defendant generally denies Plaintiff’s allegations of
negligence. (Doc. 12.)
On November 2, 2012, the District Court granted Defendant's Motion for
Summary Judgment against Plaintiff Terry Lemaster, and granted the Motion to
Intervene by the bankruptcy Trustee. (Doc. 155.) The District Court’s ruling
eliminated the original Plaintiff, Lemaster, from the case, replacing him with the
Trustee. This resulted in a disagreement between the parties concerning the status
of pending discovery motions (Doc. 104, 121) and of a discovery Order previously
issued by this Court (Doc. 149). The motions at issue were filed by or against the
original Plaintiff. The Order involved or addressed the obligations of the original
Plaintiff.
Plaintiff Trustee took the position that the issues and prior Order are now
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moot and that discovery and any motions should be re-issued to or by the new
Plaintiff. Defendant countered that Plaintiff Trustee is bound by the responses and
status of previous discovery and motions. The parties attempted to resolve this
dispute by agreement without success, resulting in this Court’s November 19,
2012, status conference. (Doc. 159, Minute Order.)
As a result of that status conference, the Court directed the parties to file
simultaneous memoranda on or before December 7, 2012, addressing the issues of
whether the pending discovery motions are moot and whether the discovery Order
(Doc. 149) is enforceable against Plaintiff Trustee. The parties submitted their
supplemental memoranda on the stated deadline. (Docs. 162, 163.) These matters
are now ripe for determination by the Court.
DISCUSSION
I.
Applicability of Prior Discovery Requests and Order.
As an initial matter, Plaintiff-Intervenor has filed the “Motion to Clarify the
Court’s October 22, 2012 Order Compelling Former Plaintiff Lemaster to Provide
Supplemental Discovery Responses, and its Application to Plaintiff/Intervenor,
or the Alternative, Intervenor’s Motion for Extension of Time.” (Doc. 156.)
Defendant did not file a response to the motion and the time to do so has expired.
D. Kan. Rule 6.1(d)(1). Given the substantive implications of this motion,
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however, the Court will provide analysis rather than merely grant it as uncontested
pursuant to D. Kan. Rule 7.4.
Fed.R.Civ.P. 1 provides that the Rules of Civil Procedure “should be
construed and administered to secure the just, speedy, and inexpensive
determination of every action and proceeding.” In addition, the Rules of Civil
Procedure provide courts with inherent power to manage and control discovery.
See generally, Fed.R.Civ.P. 26.
In this framework, the Court finds that the discovery requests involved in
Defendant’s Motion to Compel (Doc. 104), relating to contention and evidence
requests issued to the original Plaintiff, should be considered to have been issued
to Plaintiff Trustee. In addition, the Court finds that Plaintiff Trustee is bound by
the Court’s previous discovery Order (Doc. 149). While the issues therein are
personal to the original Plaintiff (see generally, Doc. 149), the Court finds that, in
the spirit of judicial economy, it is more efficient to bind the new Plaintiff to the
prior Order than to require discovery on these issues to be repeated unnecessarily.
In other words, the Court is not finding that the discovery requests at issue in
these motions and prior Order are, as a matter of law, applicable to Plaintiff.
Rather, the Court is ordering that Plaintiff Trustee be bound by the previous
discovery and rulings in this case as a result of the Court’s inherent power to
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manage discovery. Further, this finding appears to be in accordance with the
District Court’s ruling granting Plaintiff Trustee’s Motion to Intervene, which
stated that “the claim will proceed as if it had been originally commenced by
Trustee.” (Doc. 155, at 13.) The Court sees no reason why this language should
not apply to the discovery that was initiated in this case prior to Trustee’s
intervention. To the extent the Court has provided this clarification, PlaintiffIntervenor’s motion (Doc. 156) is GRANTED. Plaintiff-Intervenor shall provide
the discovery responses (as directed by the Court’s October 22, 2012, Order) on or
before February 28, 2013. The Court’s analysis will now turn to the issues raised
in the two pending discovery motions (Docs. 104, 121.)
II.
Plaintiff’s Motion to Compel Discovery Responses (Doc. 104).
As a procedural matter, Defendant argues that Plaintiff failed to file this
motion to compel in a timely manner, thus waiving the right to contest Defendant’s
responses and objections to Plaintiff’s discovery requests. (Doc. 111, at 1.)
According to the District of Kansas local rules,
[a]ny motion to compel discovery . . . must be filed and
served within 30 days of the default or service of the
response, answer, or objection that is the subject of the
motion, unless the court extends the time for filing such
motion for good cause. Otherwise, the objection to the
default, response, answer, or objection is waived.
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D. Kan. Rule 37.1(b) (emphasis added).
As Defendant points out, its responses to Plaintiff’s Requests for Production
were served on March 9, 2012. (See Doc. 111, at 1.) Pursuant to D. Kan. Rule
37.1(b), Plaintiff’s time to file the relevant motion to compel ran on April 9, 2012 –
some 70 days prior to the filing of the present motion. Defendant’s responses to
Plaintiff’s Interrogatories were served on May 10, 2012. Thus, Plaintiff’s time to
file a motion to compel regarding Defendant’s responses and objections ran on
June 11, 2012 – more than a week before this motion was filed. Thus, the motion
was not timely filed in regard to the Interrogatories or Requests for Production.
Because Plaintiff failed to file a reply to Defendant’s response, no attempt was
made to provide the Court with a basis for finding “good cause” to extend the time
to file the motion, pursuant to D. Kan. Rule 37.1(b). Plaintiff’s motion (Doc. 104)
is, therefore, DENIED as untimely.
III.
Defendant’s Motion to Determine Sufficiency of Reply to Request for
Admissions (Doc. 121).1
Defendant moves the Court for an Order compelling Plaintiff to provide full
1
The Court notes that Plaintiff has agreed to admit Defendant’s Requests for
Admission Nos. 10 and 20. This shall be done on or before February 28, 2013, in
conjunction with the other discovery ordered by the Court herein.
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and complete responses to several of its Requests for Admissions.2 (Doc. 121.)
Requests for Admission are governed by Federal Rule of Civil Procedure 36. The
rule allows a party to serve “a written request to admit . . . the truth of any matters
within the scope of Rule 26(b)(1) relating to: (A) facts, the application of law to
fact, or opinions about either; and (B) the genuineness of any described
documents.” Fed.R.Civ.P. 36(1)(1).
According to the advisory committee notes to Rule 36, Requests for
Admission serve “two vital purposes, both of which are designed to reduce trial
time. Admissions are sought, first to facilitate proof with respect to issues that
cannot be eliminated from the case, and secondly, to narrow the issues by
eliminating those that can be.” Fed.R.Civ.P. 36 advisory committee’s note (1970
Amendment). “The purpose of a request for admissions generally is not to
discover additional information concerning the subject of the request, but to force
the opposing party to formally admit the truth of certain facts, thus allowing the
requesting party to avoid potential problems of proof.” Audiotext Comm'ns
Network, Inc. v. U.S. Telecom, Inc., No. 94-2395-GTV, 1995 WL 625744, at * 1
2
The Court’s ruling in Section I of this Order means that the Requests for
Admission originally issued to Mr. Lemaster (and identifying him in the first person)
should now be interpreted as directed to, and binding on, the Plaintiff Trustee (and
identifying Mr. Lemaster in the third person).
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(D.Kan. Oct. 5, 1995) (quoting Hurt v. Coyne Cylinder Co., 124 F.R.D. 614, 615
(W.D. Tenn.1989)).
Fed.R.Civ.P. 36(a)(5) mandates that a responding party must state their
grounds for objecting to a request for admission. Subsection (6) of the rule relates
to motions regarding the sufficiency of responses and states that “[u]nless the court
finds an objection justified, it must order that an answer be served.” The rule
continues that “[o]n finding that an answer does not comply with this rule, the
court may order either that the matter is admitted or that an amended answer be
served.” Within this framework, the Court will address the various requests at
issue.
A.
Request No. 3.
The first Request for Admission at issue asks Plaintiff to admit or deny that
he was “dispatched to pick up a load in South Hutchinson, Kansas” on the day in
question. (Doc. 121-1, at 2.) Plaintiff objected that the request was “vague and
ambiguous,” then provided a clarified response without admitting or denying the
request. (Id., at 3.)
It is well-established in this District that a party objecting to discovery on the
basis of vagueness or ambiguity bears the burden to support the objections.
Williams v. Bd. of County Comm’rs, 192 F.R.D. 698, 705 (D.Kan.2000);
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Nkemakolam v. St. John’s Military School, No. 12-2132-JWL-KGG, 2012 WL
6610980, at *2 (D. Kan. Dec. 18, 2012). Plaintiff’s discovery response provides
no real support for the objection. Rather, it constitutes nothing more than a
boilerplate objection, which are looked on with “disfavor” by courts in this
District. Sellers v. Wesley Medical Center, LLC, 11-1340-JAR-KGG, 2012 WL
5362977, at *2 (Oct. 31, 2012). In his brief in opposition, Plaintiff contends that
“it is not known what the defendant means by the word ‘dispatched.’” (Doc. 128,
at 3.) The Court finds this objection to be without merit considering the common,
ordinary meaning of this word in the context of the events at issue. Based on the
additional information provided by Plaintiff, the Court deems Request No. 3
admitted and GRANTS Defendant’s motion in regard to the request.
B.
Request for Admission No. 7.
This request asks Plaintiff to admit or deny that on the day in question, “the
yellow bus was owned by McGough Leasing.” (Doc. 121-1, at 3.) Plaintiff
objects that the request calls for a legal conclusion, then clarifies the statement
contained in the request without admitting or denying the same. (Id.) The Court
finds that this request does not seek a legal conclusion, but rather seeks the
admission of the application of law to fact, which is not objectionable.
Fed.R.Civ.P. 36(a)(1)(A); Thompson v. Harness, NO. 11-1220-JTM, 2012 WL
9
1893505, at *2 (D.Kan. May 23, 2012). The Court GRANTS Defendant’s motion
in regard to Request No. 7. Plaintiff is directed to serve an amended answer to this
request on or before February 28, 2013.
C.
Request for Admission No. 9.
The next request at issue asks Plaintiff to admit or deny that his “right foot
slipped on the driver’s side step to the white bus.” (Doc. 121-1, at 4.) Plaintiff
“admits only that he was exiting the white bus [sic] his foot slipped off the driver’s
step causing him to fall to the ground and sustain severe injuries.” (Id.) While the
rules allow Plaintiff to admit or deny a portion of a request,
[i]f a matter is not admitted, the answer must specifically
deny it or state in detail why the answering party cannot
truthfully admit or deny it. A denial must fairly respond
to the substance of the matter; and when good faith
requires that a party qualify an answer or deny only a part
of a matter, the answer must specify the part admitted
and qualify or deny the rest.
Fed.R.Civ.P. 36(a)(4). Having reviewed what Plaintiff admits in his response, the
Court deems Defendant’s Request No. 9, as written, to be admitted. Defendant’s
motion is GRANTED in regard to Request No. 9.
D.
Request No. 11.
Request No. 11 asks Plaintiff to admit or deny that on the day in question,
“the substance that I claim to have slipped on the driver’s side step of the white bus
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was not visible.” (Doc. 121-1, at 4.) Plaintiff initially admitted “only that the
substance he slipped on was a clear substance.” (Id.) In response to Defendant’s
motion, Plaintiff qualifies his response as admitting “that the substance I claim to
have slipped on was a clear substance that I did not notice before the fall.” The
Court finds this clarification to be reasonable as “not visible” and “not noticed” are
not necessarily the same concepts. Defendant’s motion is DENIED in regard to
Request No. 11.
E.
Requests Nos. 12, 13, and 14.
Request No. 12 ask Plaintiff to admit or deny that, other than the substance
referenced in Request No. 11 (discussed supra), that Plaintiff had “no evidence or
reason to believe that the white bus was defective or dangerous in any manner.”
(Doc. 121-1, at 4.) Plaintiff objects that the request is “compound, vague,
ambiguous and calls for a legal conclusion” as well as an expert opinion “regarding
the defective nature of the bus.” (Id., at 4-5.) Request No. 13 states that Plaintiff
“did not see the application of any slick or slippery substance to the interior or
exterior of either of the buses [he] picked up” on the day in question. (Id., at 5.)
Plaintiff objects that the request is “compound, vague, ambiguous, and confusing
as stated.” Request No. 14 states that Plaintiff is not aware “of any person who
witnessed the application of slick or slippery substance to the interior or exterior of
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either of the buses” on the day in question. (Id., at 5.)
Defendant argues that Plaintiff does not meet his burden to adequately
support these objections. Plaintiff responds that Request No. 12 “states several
points and adds in certain several contingencies” in addition to being poorly
worded and seeking opinion testimony. (Doc. 128, at 6.) As for Request No. 13,
Plaintiff contends that the request “does not give a time frame for when someone
would have applied any substance” to either vehicle. (Id.) Plaintiff further argues
that the interior and exterior of the bus should be treated as separate contentions.
(Id.) He argues that Request No. 14 is even more compound because it refers to
the interior and exterior of two separate buses.
The Court is not persuaded by Plaintiff’s objections or the reasoning
provided in his brief. Regardless of whether an expert could be implicated by
Request No. 12, the Federal Rules allow for a Request for Admission to relate to
“facts, the application of law to fact, or opinions about either.” Fed.R.Civ.P.
36(a)(1). As for Requests Nos. 13 and 14, the “slippery substance” is the “concise
single point” addressed in these requests, regardless of how many buses or
components thereof were potentially covered with it. The Court therefore
GRANTS Defendant’s motion in regard to Requests Nos. 12, 13, and 14. Plaintiff
is directed Plaintiff to serve an amended answer to these requests on or before
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February 28, 2013.
F.
Request No. 15.
This request asks Plaintiff to admit or deny that after he fell on the day in
question, he “did not warn anyone else about the existence of a slick or slippery
substance on the driver’s side door step of the white bus.” (Doc. 121-1, at 5.)
Plaintiff objects that Defendant has not defined the term “warn.” The Court finds
that the word “warn” has a common meaning that, particularly used in the context
of this litigation and this discovery request, is apparent on its face. Although
Plaintiff goes on to deny the request “as stated,” the clarification provided by
Plaintiff sufficiently satisfies the Court that the request should be deemed to be
admitted. Defendant’s motion is, therefore, GRANTED in regard to Request No.
15.
G.
Requests Nos. 18 and 19.
These requests ask Plaintiff to admit or deny whether he “preserved” the
trailer and semi truck he owned and was using on the date in question. Plaintiff
objects that the word “preserve” is not explained or defined. Plaintiff then admits
that the trailer was returned and the truck was sold after his injury because he could
not afford to keep them. (Doc. 121-1, at 6.) In response to Defendant’s motion,
Plaintiff chose to “stand on his objections . . . .” (Doc. 128, at 7.) Because the
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term “preserve” can have a specific meaning in the evidentiary context, the Court
finds that Plaintiff’s objections are valid. Further, the clarification provided by
Plaintiff provides Defendant with sufficient information regarding what Plaintiff
did with the trailer and truck after the accident at issue. Defendant’s motion is
DENIED in regard to Requests Nos. 18 and 19.
H.
Request No. 21.
This request asks Plaintiff to admit or deny that on the day in question, he
“had excellent skills and extensive experience at loading and unloading cargo from
[his] trailer when necessary.” (Doc. 121-1, at 6.) Plaintiff objects that the terms
“excellent” and “extensive” are undefined and that “cargo” could have multiple
meanings. (Id.) Plaintiff then admits that “he was an experienced truck driver who
spent the majority of his career hauling oversized cargo which was loaded by
someone else onto his trailer.” (Id., at 6-7.) Defendant argues that Plaintiff’s
response is improper because he “does not fully admit the request, but does not
deny the request either.” (Doc. 121, at 12.) The Court finds that the manner in
which Plaintiff qualified his answer is both appropriate pursuant to Fed.R.Civ.P.
36(a)(4) and necessary given Defendant’s of the highly subjective terms
“excellent” and “extensive.” Defendant’s motion is DENIED in regard to Request
No. 21.
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I.
Request No. 22.
Request No. 22 states that Plaintiff “did not request or rely on any
instructions or directions for loading the white and yellow buses to [his] trailer” on
the day in question. (Doc. 121-1, at 7.) Plaintiff objects that the request is
compound. The Court agrees. The concepts of request instruction and relying on
instruction are significantly distinct. Defendant contends that Plaintiff’s response
is “internally inconsistent” as it denies the request but then states additional facts
which confirms the request. Plaintiff has merely clarified his response in a good
faith effort to respond to an otherwise objectionable request. Defendant’s motion
is DENIED in regard to Request No. 22.
J.
Requests Nos. 24 and 25.
These requests relate to whether or not Plaintiff’s tractor and front half of his
trailer were parked on a public street at the time he fell on the day in question.
(Id.) Plaintiff responded that he was without sufficient information to admit or
deny the request and, thus, denied it. (Id.) Defendant argues that Plaintiff failed to
make a reasonable inquiry to determine his ability to admit or deny the request.
(Doc. 121, at 9, 14.) Plaintiff’s response to Defendant’s motion contains sufficient
explanation of the inquiry made in regard to the request. (See Doc. 128, at 9.)
Plaintiff is therefore instructed to amend his responses to Requests Nos. 24 and 25
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to include the language he proposes on or before February 28, 2013, in
conjunction with the other responses the Court has ordered herein.
K.
Request No. 26.
Request No. 26 asks Plaintiff to admit or deny whether he “drove the white
bus from the parking lot of Collins Bus Corporation” on the day in question “and
parked it on the front half of my trailer.” (Doc. 121-1, at 7.) Plaintiff has agreed to
revise his response to “admit that he drove white bus from the Collins parking lot
and pulled it toward the front part of his trailer.” (Doc. 128, at 9.) Plaintiff
explains that he is unable to state whether the bus “was totally on the front half of
the trailer because he had to move the white bus up further onto the trailer a second
time so that the yellow bus was not sticking off the back of his trailer.” The Court
finds that this qualified response by Plaintiff is reasonable and appropriate pursuant
to Fed.R.Civ.P. 36(a)(4). Plaintiff is therefore instructed to amend his response to
Request No. 26 to include the language he proposes on or before February 28,
2013, in conjunction with the other responses the Court has ordered herein.
L.
Request No. 30.
This request states that prior to the day in question, Plaintiff “did not know
of any person with direct knowledge of the condition of the white bus.” (Doc. 1211, at 8.) Plaintiff objects that the request is vague and confusing, but refers
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Defendant to documents it previously produced that discuss the “defective
condition” the bus was in up to the time of Plaintiff’s accident. Defendant argues
that “Plaintiff fails to respond to the request and simply states a new statement of
fact.” (Doc. 121, at 15.) While the Court agrees with Defendant’s characterization
of Plaintiff’s response as improper, the Court also agrees with Plaintiff that the
request, as worded, is vague and confusing. As such, Plaintiff’s additional,
qualified response was unnecessary. Defendant’s motion is, therefore, DENIED in
regard to Request No. 30.
M.
Request No. 32.
Request No. 32 asks Plaintiff to admit or deny that “[a]mbulance services as
well as EMT’s arrived at [his] location at 6:15 p.m. local time” on the day in
question. (Doc. 121-1, at 9.) Plaintiff admits “only that an ambulance service
arrived after he fell and was injured at defendant’s facility.” (Id.) Defendant
argues that this is improper because Plaintiff does not deny any portion of the
request but admits only a portion of it. (Doc. 121.) Plaintiff responds that he
responded in this way because he “is unsure of what time the ambulance and EMS
arrived at the scene.” (Doc. 128, at 10.) With this qualification, the Court finds
Plaintiff’s response to be appropriate. Defendant’s motion is DENIED in regard to
Request for Admission No. 32.
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IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel
Discovery Responses (Doc. 104) is DENIED.
IT IS FURTHER ORDERED that Defendant’s motion (Doc. 121) is
therefore GRANTED in part and DENIED in part as more fully set forth herein.
Plaintiff shall provide the requisite discovery responses on or before February 28,
2013.
IT IS FURTHER ORDERED that Plaintiff/Intervenor’s Motion to Clarify
the Court’s October 22, 2012 Order Compelling Former Plaintiff Lemaster to
Provide Supplemental Discovery Responses (Doc. 156) is GRANTED. Plaintiff
shall provide the discovery responses as directed in the Court’s prior Order (Doc.
149) on or before February 28, 2013.
IT IS SO ORDERED.
Dated this 14th day of February, 2013.
S/ KENNETH G. GALE
Kenneth G. Gale
United States Magistrate Judge
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