Donaldson vs. United States Department of Treasury, et al.
ORDER denying 17 Motion to Compel. See order for details. Signed by Magistrate Judge Gwynne E. Birzer on 10/23/17. Mailed to pro se party Joseph V. Donaldson by regular mail. (adc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOSEPH V. DONALDSON,
UNITED STATES DEPARTMENT OF
TREASURY, et al.,
Case No. 17-1213-EFM-GEB
Plaintiff brings this case against the U.S. Department of Treasury, Internal
Revenue Service (“IRS”), and IRS Revenue Officer Mark Boston to protest liens against
his property. The matter is now before the Court on Plaintiff’s Motion to Compel
Production (ECF No. 17). For the reasons outlined below, Plaintiff’s Motion (ECF No.
17) is DENIED as premature.
Plaintiff asks the Court to compel the defendants to produce nine categories of
documents (ECF No. 17, at ¶¶ 1-9). He reports he served Defendants with a request for
production on September 1, 2017.
However, Defendants have not yet entered an
appearance in this case, and based upon the Returns of Service filed on the docket,
Defendants are not required to respond to the Complaint before December 4, 2017 (see
ECF Nos. 15, 16, and 18).1 Plaintiff’s requests to Defendants are premature.
Pursuant to Fed. R. Civ. P. 26(d)(1), “[a] party may not seek discovery from any
source before the parties have conferred as required by Rule 26(f),” except in specific
types of proceedings which do not apply here. In this action, the parties are not yet
required to engage in their Rule 26(f) conference—the Court will issue an Initial
Scheduling Order, which establishes a Rule 26(f) conference deadline, after all
Defendants have answered Plaintiff’s Complaint.
Even if Plaintiff intends to seek early discovery, Rule 26(d)(2) requires that any
early Rule 34 requests for production of documents must not be served on Defendants
until “more than 21 days” have passed since service of the summons and complaint.
Noting the service date of October 5, 2017, Plaintiff is not permitted to serve requests on
Defendants before October 27, 2017. And even after that date, Plaintiff must follow the
procedures set forth in Fed. R. Civ. P. 34 and 37, as well as D. Kan. Rules 37.1 and 37.2.
Generally, Plaintiff must serve Defendants with his requests, permit Defendants 30 days
to respond to his requests, and confer with them regarding any disputes—all before
seeking Court intervention.
Plaintiff has been informed, and reminded, in previous orders that—despite his pro
se status—he is expected to follow the Court’s rules and refrain from excessive filings,
The United States Attorney was served on October 5, 2017 (ECF No. 16). Under Fed. R. Civ.
P. 12, a United States agency, or a United States officer or employee sued only in an official
capacity must serve an answer to a complaint within 60 days after service on the U.S. attorney.
See Rule 12(a)(2). If the officer or employee is sued in his individual capacity, the officer must
answer within 60 days after service on the officer or on the U.S. Attorney, whichever occurs
later. See Rule 12(a)(3).
which inappropriately tax the resources of the Court. Plaintiff is, again, encouraged to
review the District of Kansas Local Rules and Federal Rules, and to thoroughly review
In light of the above, Plaintiff’s Motion to Compel Production (ECF No. 17) is
DENIED as premature.
IT IS SO ORDERED.
Dated at Wichita, Kansas this 23rd day of October, 2017.
s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge
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