Tuschhoff v. USIC Locating Services, Inc.

Filing 43

MEMORANDUM AND ORDER denying 38 Plaintiff's Motion to Expand the Number of Interrogatories. Signed by Magistrate Judge Teresa J. James on 10/14/2020. (ts)

Case 6:19-cv-01149-EFM-TJJ Document 43 Filed 10/14/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JOHN TUSCHHOFF,
Plaintiff,
v.
USIC LOCATING SERVICES, LLC,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. 19-cv-1149-EFM-TJJ

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion to Expand the Number of
Interrogatories (ECF No. 38). Pursuant to Fed. R. Civ. P. 26, Plaintiff John Tuschhoff seeks
leave to propound 20 interrogatories to Defendant beyond the already-expanded number
permitted in the Scheduling Order. Defendant USIC Locating Services, LLC opposes the motion.
I.

Relevant Background
The Scheduling Order in this case increases the Fed. R. Civ. P. 33(a)(1) presumed limit

of 25 interrogatories and allows each party to serve a total of 30 interrogatories.1 On February
20, 2020, Plaintiff served 22 interrogatories on Defendant. On March 6, 2020, Plaintiff served an
additional 4 interrogatories. Finally, on July 28, 2020, Plaintiff served 14 interrogatories on
Defendant.2 Defendant answered the first two sets. On September 3, 2020, Defendant replied to

1

See Scheduling Order (ECF No. 30) at 8.

2

Defendant disagrees with these numbers, contending Plaintiff fails to acknowledge the subparts
in many of the interrogatories. The first set contains 16 numbered interrogatories, but with
subparts the number rises to 31. The second set contains 4 interrogatories. The final set numbers
14, but with subparts there are 21 in this set alone. For purposes of this motion, the Court need
not determine whether the subparts are actually “one interrogatory directed at eliciting details
concerning a common theme,” which therefore are not counted as multiple interrogatories. See
Cardenas v. Dorel Juvenile Grp., Inc., 231 F.R.D. 616, 620 (D. Kan. 2005).

1

Case 6:19-cv-01149-EFM-TJJ Document 43 Filed 10/14/20 Page 2 of 4

each interrogatory in the third set as follows: “USIC object to this Interrogatory as exceeding the
maximum number of interrogatories, including discrete subparts, as allowed in § 2(j) of the
Scheduling Order. Doc. 13. USIC expressly reserves all rights and objections to this Interrogatory
should it be later required to answer.” The same day, Plaintiff filed this motion.

II.

Whether Plaintiff Met His Duty to Confer
Defendant urges the Court to deny Plaintiff’s motion on the ground that Plaintiff failed to

comply with the meet and confer requirements of Fed. R. Civ. P. 37(a)(1) and D. Kan. Rule 37.2.
By failing to file a reply in support of his motion, Plaintiff effectively concedes the point. In this
district, D. Kan. Rule 33.1 expressly applies the meet-and-confer requirement to motions seeking
to serve additional interrogatories. “If a party seeks leave to serve additional interrogatories to
those permitted by Fed. R. Civ. P. 33(a), a motion must be filed that sets forth (1) the proposed
additional interrogatories; and (2) the reasons establishing good cause for their service. Such
motion is subject to D. Kan. Rule 37.2.”3
Thus, in reviewing a motion to expand the number of permissible interrogatories, a court
in this district
will not entertain any motion to resolve a discovery dispute . . .
unless the attorney for the moving party has conferred or has made
reasonable effort to confer with opposing counsel concerning the
matter in dispute prior to the filing of the motion. Every
certification . . . related to the efforts of the parties to resolve
discovery . . . disputes must describe with particularity the steps
taken by all attorneys to resolve the issues in dispute.
A “reasonable effort to confer” means more than mailing or faxing
a letter to the opposing party. It requires that the parties in good
faith converse, confer, compare views, consult, and deliberate, or
in good faith attempt to do so.4

3

D. Kan. Rule 33.1.

4

D. Kan. R. 37.2.
2

Case 6:19-cv-01149-EFM-TJJ Document 43 Filed 10/14/20 Page 3 of 4

Without any notice to Defendant, Plaintiff filed this motion on the same day Defendant
served its objections to Plaintiff’s third set of interrogatories. The Court finds that Plaintiff made
no “reasonable effort to confer” under D. Kan. Rule 37.2. The Court agrees with Defendant that
Plaintiff’s motion to exceed the permissible number of interrogatories should be denied for
failure to make reasonable effort to confer concerning the matter as required by D. Kan. Rules
33.1 and 37.2.
Moreover, the Court notes that Plaintiff incorrectly states the standard to be applied to his
request. Plaintiff asserts the Court must expand the number of interrogatories unless it finds that
one of the provisions of Rule 26(b)(2)(C) apply. In fact, the rule is stated in the inverse: “the
court must limit the . . . discovery otherwise allowed by these rules or by local rule” if it
determines that one of the provisions of Rule 26(b)(2)(C) apply.5 Plaintiff does not set forth facts
that sufficiently demonstrate his entitlement to additional interrogatories. For these reasons, the
Court denies the motion.
IT IS THEREFORE ORDERED THAT Plaintiff’s Motion to Expand the Number of
Interrogatories (ECF No. 38) is DENIED.

5

On motion or on its own, the court must limit the frequency or extent of discovery otherwise
allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less burdensome, or less
expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
Fed. R. Civ. P. 26 (b)(2)(C).
3

Case 6:19-cv-01149-EFM-TJJ Document 43 Filed 10/14/20 Page 4 of 4

IT IS SO ORDERED.
Dated this 14th day of October, 2020, at Kansas City, Kansas.

Teresa J. James
U. S. Magistrate Judge

4