Waterman v. Board of Commissioners of Columbus, Kansas et al

Filing 110

MEMORANDUM AND ORDER denying 103 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 4/11/19. Mailed to pro se party Brian Michael Waterman by regular mail. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRIAN MICHAEL WATERMAN,

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Plaintiff,
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v.
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BOARD OF COMM’RS OF
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COLUMBUS, KANSAS,
)
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Defendant. )
_______________________________)

Case No.: 18-3135-CM-KGG

MEMORANDUM & ORDER
Now before the Court is Plaintiff’s Motion to Compel. (Doc. 103.) As
discussed below, Plaintiff’s motion is DENIED.
Plaintiff’s motion consists of three requests: 1) to compel Cherokee County
Jail to “let [him] review al DVDs or CD-ROMs submitted, or strike them from the
record;” 2) to compel the Jail “to hand over all grievances to Plaintiff an[d]
correspondences from [illegible] to properly defend [against] Motion to Dismiss;”
and 3) to compel the Jail “to submit food [menu], courts an[d] Plaintiff cannot
properly respond to Defendants Dismissal without all the facts.” (Doc. 103.)
Defendant responds that Plaintiff has failed to “identify any rule or other law under
which his motion may be properly filed.” (Doc. 104, at 1.) Defendant argues that
although the motion is styled as a Fed.R.Civ.P. 37 motion to compel, “it contains

no references to antecedent requests or the attachments and certifications required
by F.R.C.P. 37(a)(1) or D. Kan. Rule 37.1(a).” (Id.) Plaintiff did not file a reply to
Defendant’s response.
A motion to compel is proper when a party has submitted formal discovery
to another party such as interrogatories (Fed.R.Civ.P. 33) or requests for
production of documents (Fed.R.Civ.P. 34) and the other party has not properly
responded. Defendant is correct that D. Kan. Rule 37.1(a) requires any motion to
compel to “be accompanied by copies of the ... portions of the ... [discovery]
requests or responses in dispute.”
Lack of compliance with this local rule is more than a
mere technicality. Without a copy of the disputed
requests … the Court is unable to assess … the
sufficiency of either Plaintiff’s requests or [Defendant’s]
objections.
Carter v. Spirit Aerosystems, Inc., No. 16-1350-EFM-GEB, 2018 WL 5923487, at
*7 (D. Kan. Nov. 13, 2018).
That stated, Courts in this District allow a moving party who has failed to
include copies of the discovery requests and responses at issue to refile the motion
in compliance with D. Kan. Rule 37.1. Bell v. City of Topeka, Kan., No. 06-4026JAR, 2007 WL 852635, at 1-2 (D.Kan. March 20, 2007). Thus, if Plaintiff has
previously served written discovery requests seeking this information from
Defendants – and Defendants have failed to respond, have objected improperly, or

have responded insufficiently to such written discovery requests – Plaintiff may
refile this motion and attach the corresponding discovery requests and responses
(or objections) to the refiled motion. If no such written discovery requests have
been served by Plaintiff, any such refiling will not be considered by the Court.
Carter, 2018 WL 5923487, at 7.

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel (Doc.
103) is DENIED, subject to refiling if written discovery requests regarding these
topics were previously served on Defendant.
IT IS SO ORDERED.
Dated this 11th day of April, 2019, at Wichita, Kansas.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE