Mohnsam v. Nemes et al
Filing
123
MEMORANDUM OPINION AND ORDER by Magistrate Judge Colin H. Lindsay on 7/22/2019 - Acuity's Motion to Compel (DNs 74 , 75 ) is GRANTED as to Interrogatory Nos. 5 and 9 and Request for Production Nos. 1-24, and 27; GRANTED IN PART and DENIED IN PART as to Interrogatory Nos. 17(3) and 18(6) and Request for Production Nos. 25, 26, 28, and 29; and DENIED as to Interrogatory Nos. 20-25, and 27-32. On or before 8/5/2019, Perry shall serve supplementary answers and responses in accordance with this Memorandum Opinion and Order. cc: Counsel of Record, Pro Se Defendant Morgan Bryan Perry (KD)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:17-CV-427-CRS-CHL
KURT K. MOHNSAM,
Plaintiff,
v.
JASON M. NEMES, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is the Motion to Compel and for Sanctions of Defendant, Acuity, A
Mutual Insurance Company (“Acuity”). (DNs 74, 75.) Acuity moves to compel answers to certain
interrogatories and requests for production of documents propounded to pro se Defendant, Morgan
Bryan Perry (“Perry”), as well as for its costs and attorney’s fees in making the instant Motion.
Perry was ordered to file his response to the Motion on or before February 14, 2019, but did not
do so. (DN 77.) As his time to respond has expired, the matter is ripe for decision.
For the reasons set forth below, Acuity’s Motion to Compel and for Sanctions (DNs 74,
75) is GRANTED IN PART AND DENIED IN PART.
I.
BACKGROUND
The instant action arises out of Perry’s alleged failure to compensate his former attorney,
Plaintiff, Kurt K. Mohnsam (“Mohnsam”), following the settlement of Perry v. Martin & Bayley,
Inc., No. 13-CI-00439, filed in Shelby Circuit Court, and Perry v. Martin & Bayley, Inc., No. 3:13cv-00055, filed in the United States District Court for the Eastern District of Kentucky (the
“underlying actions”). (DN 74, at PageID # 582; DN 1, at ¶¶ 26, 28.) On August 17, 2017, Acuity
filed an Answer to Mohnsam’s Complaint and a Crossclaim against Perry and Defendants Jason
Nemes and Fultz Maddox Dickens, PLC alleging breach of the settlement agreement and mutual
release entered into in settlement of the underlying actions. (DN 18.) While Perry originally
appeared to attempt to assert a crossclaim against Acuity, the same was struck per the Court’s
November 30, 2017 Order. (DN 37.)
On or about June 15, 2018, Acuity propounded interrogatories and requests for production
of documents to Perry. (DN 74, at PageID # 582; DN 74-1.) These discovery requests included
requests for “information concerning [Perry’s] net receipt of the $1,800,000.00 settlement[;]
itemized list of the current location for the proceeds[;] an accounting of each expenditure, purchase
or investment made with the proceeds[;] bank account information of where the proceeds were
deposited[;]
detailed
investment
expenditure/purchase information.”
information
from
the
proceeds[;]
(DN 74, at PageID # 582.)
and
detailed
Acuity also requested
documentation to track these topics, including tax returns, bank statements, etc. (Id.)
In his answers to Acuity’s interrogatories, Perry refused to answer several questions
regarding his finances on grounds that “th[e] information [wa]s unnecessary without a judgment
or court order.” (DN 74-2, at PageID # 617.) In his responses to Acutiy’s requests for production
of documents, he largely responded that all documents had been destroyed due a break-in and
vandalism at the location where the documents were stored. (Id. at 618-19.) When the Parties
took Perry’s deposition on September 27, 2018, Perry likewise refused to answer some questions
regarding his finances and disposition of the settlement funds he received but did answer others.
(DN 93, at PageID # 1200-1214.)
Acuity alerted the Court of a dispute regarding Perry’s discovery responses during an
October 24, 2018 telephonic status conference, and the Court offered some preliminary guidance
on the issues. (DN 67.) The Court then ordered Perry and Acuity to again confer and attempt to
resolve their dispute but also granted Acuity leave to file a Motion to Compel if the dispute could
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not be resolved. (Id.) Acuity stated in its Motion to Compel that it heard nothing from Perry after
the October status conference and attempted to call Perry on November 26, 2018 to request “an
update on the status of his answers to their written discovery.” (DN 74, at PageID # 584-85.) On
the same date, Acuity sent Perry a letter in which it stated:
This is in follow-up to the Court’s Order issued on October 26, 2018 directing that
you provide answers to certain portions of our written discovery. It has now been
four weeks since the Court Order was issued. Please advise immediately as to when
you intended to provide the answers per the Court Order.
(DN 74-5 (emphasis added).) Notably, the Court’s October 26, 2018 Order directed Perry to
provide answers to written discovery propounded by Plaintiff, not Acuity. (DN 67.)
During a November 29, 2018 telephonic status conference, Acuity indicated that there
remained a dispute between it and Perry regarding his discovery responses. (DN 68.) Since not
all Parties were present on the call, the Court set a separate telephonic status conference to discuss
the dispute. (Id.) Prior to the call, Perry filed additional discovery responses that contained
supplemental answers to interrogatories propounded by Plaintiff but as to Acuity, only stated,
“Please see the attachments. To the best of my knowledge, at this time, this is all the records that
I have for the legal expenses pertaining to this case.” (DN 70, at PageID # 533.) Acuity thereafter
tried to contact Perry “requesting compliance with the Court’s October 26, 2018 Order . . . ” on
December 3, 2018. (DN 74, at PageID # 585.) On December 4, 2018, Acuity sent a letter to Perry
that again construed the Court’s October 26, 2018 letter as directing Perry to “provide answers to
certain portions of [Acuity’s] written discovery.” (DN 74-7.) The letter instructed Perry to “advise
[Acuity] immediately as to when [Perry] intend[ed] to provide the answers per the Court order.”
(Id.)
During a December 11, 2019 telephonic status conference, Acuity told the Court that it had
tried to confer with Perry but that Perry had not provided the requested materials. (DN 72, at
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PageID # 576.) The Court then set a deadline for any party, including Acuity, to file a Motion to
Compel, regarding Perry’s discovery responses. (Id. at 576-77.) Subsequent to the call, Acuity
again attempted to follow up with Perry by phone and in writing. 1 (DN 74, at PageID # 585-86;
DN 74-10.) Acuity asked Perry about the status of his discovery responses and advised that it
would file a motion to compel if new answers were not received. (DN 74-10.) On January 14,
2019, Perry called Acuity’s counsel regarding the discovery and sent new discovery responses to
Acuity.2 (DN 74, at PageID # 586, 592-93; DN 74-11.) As Acuity was still unsatisfied with the
contents thereof, it filed the instant Motion to Compel and for Sanctions. (DNs 74, 75.)
II.
DISCUSSION
A.
Legal Standard
Fed. R. Civ. P. 26(b)(1) provides that “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs
of the case . . . .” Fed. R. Civ. P. 26(b)(1). This language is broadly construed by the federal courts
to include “any matter that bears on, or that reasonably could lead to other matter[s] that could
bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S.
340, 351 (1978). “When faced with questions over, or disputes about, what information or
documents may be obtained based on their relevancy, it is axiomatic that the trial court is afforded
broad discretion to determine the bounds of inquiry.” Janko Enters. v. Long John Silver's, Inc.,
No. 3:12-cv-345-S, 2013 WL 5308802, at *2 (W.D.Ky. Aug. 19, 2013) (citing Chrysler v. Fedders
Corp., 643 F.2d 1229, 1240 (6th Cir.1981), cert. denied, 454 U.S. 893 (1981)). The scope of
Acuity’s initial e-mail to Perry stated, “As the Court had ordered, we are still awaiting responses to each of our
discovery requests.” (DN 74-10, at PageID # 683.)
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Acuity’s counsel represented that, on the call, Perry indicated that he had not provided information in Response to
Interrogatory Nos. 21-25 because of an issue with the wording. (DN 74, at PageID # 586, 592-93.) Specifically, Perry
said he interpreted Interrogatory Nos. 21-25 as all being only about any funds received from Mohnsam because of a
cross-reference to Interrogatory No. 20. (Id.)
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discovery is not without limits, however. In assessing whether information is within the scope of
discovery, the Court is directed to consider “the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to relevant information, the parties’ resources,
the importance of the discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Further, on motion or
on its own, the Court may limit discovery that is unreasonably cumulative or duplicative; may be
obtained from a less burdensome or expensive source; is outside the scope of discovery; or that a
party has already had an opportunity to obtain in the action. Id. at 26(b)(1)(2)(C).
Fed. R. Civ. P. 33 governs interrogatories and Rule 34 governs requests for production of
documents. Fed. R. Civ. P. 33-34. Rule 33(b)(3) requires the responding party to answer each
interrogatory separately and under oath to the extent the responding party does not object to the
interrogatory. Fed. R. Civ. P. 33(b)(3). Similarly, Rule 34(b)(2)(B) requires a response to a
document request to “either state that inspection and related activities will be permitted as
requested or state an objection to the request, including the reasons,” and Rule 34(b)(2)(C) requires
any objection to “state whether any responsive materials are being withheld . . . .” Fed. R. Civ. P.
34(b)(2)(B)-(C). Rules 33 and 34 are structured such that, in combination with Rule 26(g)(1), both
the requesting party and the court may be assured that all responsive, non-privileged materials are
being produced, except to the extent a valid objection has been made. Heller v. City of Dall., 303
F.R.D. 466, 487 (N.D. Tex. 2014) (quoting Evans v. United Fire & Cas. Ins. Co., No. 06-6783,
2007 WL 2323363, at *2 (E.D. La. Aug. 9, 2007)). A party who believes these rules have been
violated “may move for an order compelling disclosure or discovery” provided that the party
certifies to the Court that it “has, in good faith, conferred or attempted to confer with the person
or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed.
5
R. Civ. P. 37(a)(1); see id. at (a)(3)(B)(iii)-(iv) (providing that a party may move to compel answers
to interrogatories propounded under Rule 33 or responses to requests for production propounded
under Rule 34).
B.
Analysis
1.
Motion to Compel
In its Motion, Acuity requested that the Court compel Perry to provide “direct and complete
verified answers” to Acuity’s First Set of Interrogatories, Nos. 5, 9, 17(c), 18(c), and 20-25.3 (DN
74, at PageID # 580, 590.) Acuity also requested that the Court compel Perry to provide answers
to its Request for Production of Documents Nos. 1-29, and its Second Set of Interrogatories to
Perry, Nos. 27-32. (Id.) The Court will address each of these requests in turn.
a)
Interrogatory No. 5
INTERROGATORY NO. 5: Identify each and every document and/or tangible
exhibit which you will introduce into evidence or use for demonstrative purposes
at the trial in this matter.
(DN 74-1, at PageID # 596.)
Perry initially responded by incorporating his answer from
Interrogatory No. 3, which stated, “The people listed from the original trial, records are listed with
the Shelby County Court House, Shelby County, Kentucky.” (DN 74-2, at PageID # 616.) Perry
supplemented his response to state, “To the best of my knowledge, I have already produced all of
my evidence.” (DN 74-11, at PageID # 687.) In its Motion to Compel, Acuity argued that Perry
did not make a good faith attempt to search “his financial records” and provide what was requested
to Acuity. (DN 74, at PageID # 586.) However, Interrogatory No. 5 did not specifically ask for
financial information, it merely asked for all documents or tangible exhibits Perry intended to
Though Acuity’s proposed order and Motion sometimes refer to Interrogatory No. 19(c) instead of Interrogatory No.
18(c), the Court assumes Acuity meant 18(c) because Interrogatory No. 19 has no subparts. (DN 74-1, at PageID #
599-600.)
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introduce at trial. Nonetheless, upon review, the Court finds that both Perry’s answer and
supplemental answer are insufficient as they do not include any specific document that Perry
intends to introduce at trial. Therefore, Acuity’s Motion will be granted as to Interrogatory No. 5.
Perry is instructed that he must identify the exhibits he wishes to introduce at trial at this time and
may supplement his response at a later date, if warranted, and in accordance with any additional
pretrial orders issued by the Court.
b)
Interrogatory No. 9
INTERROGATORY NO. 9: Identify the following for any payment or
compensation you paid Attorney Mohnsam in consideration of legal work he
performed on your behalf:
1.
The date of payment.
2.
The amount of the payment.
3.
Whether the payment was made by cash, check, or credit card.
(DN 74-1, at PageID # 597.) Perry initially responded by stating that “Mohnsam was paid with a
check in the amount of $25,000 for his work on the Federal Case.” (DN 74-2, at PageID # 617.)
Perry supplemented his response to state that he did not recall the date of the payment, that all
payments were made in either personal or cashier’s check, and that he recalled sending a cashier’s
check for $25,000 and at least two personal checks of $2,000. (DN 74-11, at PageID # 688.)
Acuity argued that Perry’s failure to provide a date was insufficient because the dates would have
been recorded by his financial institution, and Perry “could have made a good faith attempt to
contact them.” (DN 74, at PageID # 586.)
Interrogatories must be answered fully, and an evasive or incomplete answer is the
equivalent of a failure to answer. Fed. R. Civ. P. 33(b)(3), 37(a)(4). Further, while “[l]ack of
knowledge or the ability to recollect is, if true, a fair answer,” Weaver v. Mateer & Herbet, P.A.,
277 F.R.D. 655, 658 (M.D. Fla. 2011), “[a] party answering interrogatories has an affirmative duty
to furnish any and all information available to that party.” Roden v. Floyd, No. 2:16-cv-11208,
7
2019 WL 1098918, at *3 (E.D. Mich. March 8, 2019) (quoting 7 James W.M. Moore et al.,
Moore’s Federal Practice ¶ 33.102[1]. [3] (3d ed. 2017)). See also Gorrell v. Sneath, 292 F.R.D.
629, 632 (E.D. Cal. 2013) (quoting Haney v. Saldana, No. 1:04-cv-05935, 2010 WL 3341939, at
*3 (E.D. Cal. Aug. 24, 2010)) (“In general, a responding party is not required ‘to conduct extensive
research in order to answer an interrogatory, but a reasonable effort must be made.’”). While
Perry’s response stated that he did not recall the dates of any payments to Mohnsam, his response
did not address whether he attempted to obtain this information from any source available to him.
Accordingly, Acuity’s Motion to Compel will be granted as to Interrogatory No. 9 in so far as the
Court will require Perry to make a reasonable effort to obtain the date of any payment referenced
in Perry’s previous answers to Interrogatory No. 9. Perry shall provide a supplemental response
to Interrogatory No. 9 either stating the dates of any such payment or stating that he attempted to
obtain this information and was unable to do so.
c)
Interrogatory Nos. 17(3) and 18(6)
INTERROGATORY NO. 17: Identify the following for each bank account you,
individually or joint [sic], have owned from 2012 to the present time:
...
3.
The account numbers of each account.
INTERROGATORY NO. 18: Identify the following for each bank account in the
name of any business or legal entity in which you have had an ownership interest
from 2012 to the present time:
...
6.
The account numbers of each account.
(DN 74-1, at PageID # 599.)4 Perry initially responded to both Interrogatory No. 17(3) and 18(6)
by incorporating his answer to Interrogatory No. 14, which stated that the information was
“unnecessary without a judgment or court order.”
(DN 74-2, at PageID # 617.)
Perry
Though Acuity’s Motion referred to Interrogatory Nos. 17(c) and 18(c), Interrogatory Nos. 17 and 18 as provided to
the Court included subparts 1-3 and 4-6 respectively, not a-c. (DN 74-1, at PageID # 599.) However, based on
Acuity’s Motion, it is clear Acuity’s challenge is to Perry’s Answer to the final subpart of each Interrogatory.
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supplemented his answer to Interrogatory No. 17(3) to state that “[t]here have been so many
accounts, both individual and joint accounts with my wife, to the best of my knowledge I do not
recall the account numbers.” (DN 74-11, at PageID # 689-90.) As to Interrogatory No. 18(6), his
supplemental answer stated, “I do not recall the account numbers.” (Id. at 690.) Acuity argued
that Perry did not attempt to contact his financial institution or review his financial records to
determine this information as required. (DN 74, at PageID # 586.) While a party is required to
obtain and answer interrogatories on the basis of information reasonably available to him or her,
the Court has concerns about the breadth of information requested in Interrogatory Nos. 17 and
18.
A party may obtain discovery on “any nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the case,” and relevance is construed broadly.
Fed. R. Civ. P. 26(1); Oppenheimer, 437 U.S. at 351. The allegations in this matter center on
whether Perry or some other party with an obligation to do so, failed to compensate Plaintiff
Mohnsam for his work on the underlying actions. (DN 1.) Acuity’s crossclaim against Perry is
for breach of a settlement agreement, misrepresentation, and indemnity. (DN 18.) Acuity’s only
argument as to why Perry’s account numbers are relevant is that Acuity needs to “track Mr. Perry’s
funds from the settlement as, as [Mohnsam] is specifically claiming a stake in a portion of those
funds,” and therefore, Acuity needed to “receive information concerning Mr. Perry’s accounts
where the funds were deposited, along with detailed information concerning where the funds are
located or how the funds were utilized or transferred.”
(DN 74, at PageID # 584.)
But
Interrogatory Nos. 17-18 are not limited to accounts into which Perry deposited any settlement
proceeds received or from which Perry might have conveyed any monies to Mohnsam. While the
Court recognizes why Acuity might want to know how Perry disposed of any settlement funds for
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purposes of collecting on a future judgment or for purposes of settlement of this case, Acuity has
not demonstrated that specific details regarding Perry’s use of the settlement funds are relevant to
the claims presently before the Court. The Court concludes that Acuity is only entitled to the
account number of any account into which Perry deposited the settlement funds at issue or from
which Perry paid Mohnsam with the settlement funds at issue. Accordingly, Acuity’s Motion to
Compel is granted in part as to Interrogatory Nos. 17(3) and 18(6) insofar as the Court will require
Perry to obtain the account number of any account into which he deposited the settlement funds at
issue or from which he paid Mohnsam with the settlement funds at issue. Perry shall provide a
supplemental response to Interrogatory Nos. 17(3) and 18(6) either stating the number for any such
account or detailing the attempts he made to obtain this information if he was unable to ascertain
the account number.
d)
Interrogatory Nos. 20-25
INTERROGATORY NO. 20: Identify the net amount of money you received
from Attorney Mohnsam from the $1,800,000 settlement funds that was paid by
Acuity in the Perry v. Martin & Bayley case.
INTERROGATORY NO. 21: Provide an itemized list of the current location(s)
for any portion of the net settlement proceeds you received as referenced in
Interrogatory No. 20.
INTERROGATORY NO. 22: Provide an accounting of each expenditure,
purchase, or investment made with any portion of the net settlement proceeds
referenced in Interrogatory No. 20.
INTERROGATORY NO. 23: Identify the following for each bank account in
which you deposited any portion of the net settlement proceeds referenced in
Interrogatory No. 20:
1.
The name, address, and telephone number of the bank.
2.
The type of accounts the money was deposited into.
3.
The account number of each account the money was deposited into.
INTERROGATORY NO. 24: Identify the following for each investment you
made with any of the net settlement proceeds referenced in Interrogatory No. 20:
10
1.
2.
3.
4.
The name, address, and telephone number of the person or company
with whom the investment was made.
A description of the investment.
The account or identification number of the investment
The amount of the investment.
INTERROGATORY NO. 25: Identify the following for each expenditure or
purchase you made with any of the net settlement proceeds referenced in
Interrogatory No. 20:
5.
The name, address, and telephone number of the person or company
with whom the investment was made.
6.
A description of the investment.
7.
The account or identification number of the investment.
8.
The amount of the investment.
(DN 74-1, at PageID # 600-01.) Perry initially responded to the above interrogatories by stating
that “[n]o money was received from Mohnsam”; by incorporating his answer to Interrogatory No.
14, which stated that the information was “unnecessary without a judgment or court order”; and
by stating that “records were destroyed due to a break-in and vandalized storage area that sustained
water damage as well.” (DN 74-2, at PageID # 617.) In his supplemental answers, Perry repeated
as to each Interrogatory and Subpart thereof that he “received $0.00 from Mohnsam.” (DN 74-11,
at PageID # 690-92.)
In its Motion, Acuity represented that shortly before serving the
supplemental responses, Perry called to speak with Acuity’s counsel and stated that he provided
no information regarding his finances in response to Interrogatory Nos. 21-25 because
Interrogatory No. 20 included a reference to settlement funds received from “Attorney Mohnsam”
as opposed to “Attorney Nemes” or “Fultz Maddox Dickens,’” from whom he had actually
received the funds. (DN 74, at PageID # 586, 593.) Acuity’s Motion sought to compel responses
to discovery from Perry, stating that he refused to answer the question in “good faith” because
despite the specific wording of the interrogatories, Perry was aware of the information sought by
Acuity due to their numerous conversations regarding the nature of the requests. (Id. at 587, 589.)
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The Court notes that Interrogatory Nos. 21, 22, 24, and 25, at least in part, seek information
outside the scope of discovery. As the Court discussed above, the claims in this case relate to
whether Plaintiff Mohnsam was due and if so, was paid, a portion of the settlement proceeds. (DNs
1, 18.)
Acuity also has a counterclaim pending against Perry for breach of contract and
misrepresentation. (DN 18.) Therefore, only information about where Perry initially deposited
the settlement proceeds and any proceeds he used to pay Mohnsam is relevant and within the scope
of discovery in this matter. Any purchases, investments, or expenditures Perry made thereafter
with the settlement proceeds are not relevant to the current claims and defenses before the Court.
Therefore, the Court will not compel Perry to provide any information outside the scope of
discovery.
However, even to the extent some of the interrogatories themselves sought information
outside the scope of discovery, the Court further finds that Perry provided sufficient responses to
the stated questions by indicating in his supplemental responses that he received no money from
Mohnsam.
Interrogatory No. 20 specifically asked about funds “received from Attorney
Mohnsam” and Interrogatory Nos. 21-25 specified to answer as to “the net settlement proceeds
received in Interrogatory No. 20,” which included the limitation “received from Attorney
Mohnsam.” (DN 74-1, at PageID # 600-01.) Therefore, Perry fully answered Interrogatory Nos.
21-25 by stating that he “received $0.00 from Mohnsam.” (DN 74-11, at PageID # 690-92.)
While, as Acuity contends, it may have been clear to Perry from conversations with Acuity’s
counsel what information Acuity was seeking, the Court cannot compel Perry to provide
information that was not requested in a formal discovery request. Rule 37(a)(3)(B)(iii) permits a
party to file a motion to compel where “a party fails to answer an interrogatory submitted under
Rule 33.” Fed. R. Civ. P. 37(a)(3)(B)(iii). The Court finds that Perry gave full and complete
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answers to the interrogatories propounded and, therefore, will deny Acuity’s Motion as to
Interrogatory Nos. 20-25.
e)
Interrogatory Nos. 27-32
Acuity also requested that the Court order Perry to provide answers to Acuity’s Second Set
of Interrogatories and attached the same to its Motion. (DN 74, at PageID # 590; DN 74-12.)
Acuity stated in its Motion that it “[wa]s propounding” the Second Set of Interrogatories, and the
Certificate of Service on those interrogatories indicated that they were served on January 15, 2019,
the same day Acuity filed its Motion to Compel. (DN 74, at PageID # 589; DN 74-12, at PageID
# 699.) As the Second Set of Interrogatories was served the same day Acuity filed its Motion to
Compel, the time for Perry to respond to the Second Set of Interrogatories had not yet expired.
See Fed. R. Civ. P. 33(b)(2) (providing that a responding party has thirty days after being served
with interrogatories to serve its answers to the same). Therefore, Perry could not have failed to
answer within the meaning of Rule 37 at the time the instant Motion was filed, nor could Acuity
and Perry have yet met and conferred prior to filing the instant Motion as required by Rule 37.
Accordingly, the Court concludes that Acuity’s Motion to Compel is premature and improper
under Rule 37. Further, “[u]nless otherwise stipulated or ordered by the court,” a party is only
permitted by the terms of Rule 33 to serve twenty-five interrogatories. Fed. R. Civ. P. 33(a)(1).
Acuity’s Second Set of Interrogatories contained Interrogatory Nos. 27-32, putting it over its limit
under the Rules. Acuity neither sought leave of Court to propound additional interrogatories in its
Motion, nor represented that there was any stipulation from the parties to make service of
additional interrogatories proper. For these reasons, Acuity’s Motion to Compel will be denied as
to Interrogatory Nos. 27-32.
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f)
Requests for Production
Acuity also requested that Court compel Perry to provide responses to its Request for
Production of Documents No. 1-29. (DN 74, at PageID # 587, 589-90.) Acuity propounded
twenty-nine requests for production of documents to Perry. (DN 74-1, at PageID # 605-15.) Perry
initially responded with enumerated responses for each individual Request for Production. As to
the vast majority of requests, Perry responded that “there [we]re no documents to produce due to
a break-in & vandalism at the storage location which also caused damage destroying documents,”
stating or incorporating the same as his response to sixteen requests for production. (DN 74-2, at
PageID # 618-19.) Shortly before the December 2018 conference call with the Court, Perry filed
additional discovery responses and attached documents but did not specifically enumerate to which
of Acuity’s requests the documents were responsive. (DN 70.) Then, in January 2019, along with
his supplemental answers to Acuity’s interrogatories, Perry also served a single, supplemental
response to Acuity’s Request for Production in which he stated, “To the best of my knowledge,
any documents, videos, photos – any and all documentation pertaining to the case Perry vs. Martin
& Bayley is in the possession of Fultz Maddox Dickenson [sic] Law Firm.” (DN 74-11, at PageID
# 685.)
In its Motion, Acuity emphasized that in response to Acuity’s attempts to discuss its
concerns regarding his initial discovery responses, Perry served “one blanket non-responsive
answer to Acuity’s twenty-nine (29) Requests for Production of Documents, and produced no
additional documents.” (DN 74, at PageID # 581.) Acuity noted that Perry did not provide
supplemental individualized responses but did not address what other deficiencies it saw in Perry’s
initial, individualized responses. (Id. at 587.) Fed. R. Civ. P. 34(b)(2)(E)(i) requires documents
produced in response to a request for production to be “organize[d] and label[ed] . . . to correspond
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to the categories in the request.” Fed. R. Civ. P. 34(b)(2)(E)(i). Accordingly, the Court will require
Perry to supplement his responses to the request for production to specify which of the documents
he produced are responsive to which request for production. As with answers to interrogatories,
Perry is instructed to set forth the request for production, followed by his response to the same.
Because Acuity did not make any specific arguments as to the sufficiency of Perry’s initial,
individual responses other than to note that his answers were “evasive,” the Court will not do a
request by request analysis of Perry’s responses. However, because Acuity stated Perry’s previous
responses were “vague,” in supplementing his responses to Acuity’s requests for production, Perry
is instructed to carefully read each request and to produce any documents within his “possession,
custody, or control.” Fed. R. Civ. P. 34(a)(1). “A party controls a document that it has the right,
authority, or ability to obtain upon demand.” Congress v. Tillman, No. 09-cv-10419, 2009 WL
3627996, at *3 (E.D. Mich. Oct. 30, 2009) (quoting Scott v. AREX, Inc., 124 F.R.D. 39, 41 (D.
Conn. 1989)). Therefore, it will not be considered a sufficient response for Perry to state that a
document is in the possession of some other person if Perry has access to the document and could,
therefore, obtain and produce it to Acuity. In his supplemental responses, if Perry tried to obtain
documents but was ultimately unable to do so, he should state the same in his response.
However, in examining Acuity’s requests for production, the Court also notes that some of
Acuity’s requests ask for documents that are outside the scope of discovery given the claims at
issue in this case:
REQUEST FOR PRODUCTION NO. 25: Produce a complete copy of all bank
statements from each bank or financial institution in which you possess the [sic]
bank account between the years 2015 to the present time.
REQUEST FOR PRODUCTION NO. 26: Produce a complete copy of all bank
account statements for any business or legal entity in which you have possessed an
ownership interest between the years to 2015 to the present time.
15
REQUEST FOR PRODUCTION NO. 28: Produce a complete copy of all
documents referencing or memorializing Defendant Perry’s purchase or
expenditures of any settlement funds (from the settlement with Martin & Bayley)
for any investments.
REQUEST FOR PRODUCTION NO. 29: Produce a complete copy of all
documents referencing or memorializing any expenditures or purchases by
Defendant Perry that were made after receipt of the settlement proceeds from
Defendant Perry’s settlement with Martin & Bayley.
(DN 74-1, at PageID # 613-14.) Again, as noted above, what Perry did with the money after he
received it is not relevant except in so far as to discover the amount of any settlement he received
and whether and in what amounts he remitted payment to Mohnsam. Therefore, as to Request for
Production Nos. 25 and 26, Acuity’s Motion will be granted only in so far as the Court will direct
Perry to produce bank account statements for any bank account into which he deposited the
settlement funds at issue or from which he paid Mohnsam with the settlement funds at issue. As
to Request for Production Nos. 28 and 29, Acuity’s Motion will be granted only in so far as the
Court will direct Perry to produce any documents related to payments made to Mohnsam.
2.
Motion for Sanctions
Acuity requested that Perry be required to pay the reasonable costs and attorney’s fees for
having to prepare the instant Motion and send a second set of interrogatories to Perry. (DN 74, at
PageID # 581, 590.) Under Fed. R. Civ. P. 3795)(A), if a court grants a motion to compel,
the court must, after giving an opportunity to be heard, require the party or deponent
whose conduct necessitated the motion, the party or attorney advising that conduct,
or both to pay the movant’s reasonable expenses incurred in making the motion,
including attorney’s fees. But the court must not order this payment if:
(i)
the movant filed the motion before attempting in good faith to obtain
the disclosure or discovery without court action;
(ii)
the opposing party’s nondisclosure, response, or objection was
substantially justified; or
(iii) other circumstances make an award of expenses unjust.
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Fed. R. Civ. P. 37(a)(5)(A). An opportunity to be heard need not be at a hearing. Fed. R. Civ. P.
37(a)(5) advisory committee’s note to 1993 amendment (citing to former subdivision (a)(4)).
Further, in determining whether “other circumstances that make an award of expenses unjust”
exist, the Court can consider “whether the prevailing party also acted unjustifiably.” Fed. R. Civ.
P. 37(a)(4) advisory committee’s note to 1970 amendment. If a motion to compel is granted in
part and denied in part, then it is within the court’s discretion to apportion the reasonable expenses
for the motion. Fed. R. Civ. P. 37(a)(5)(C). While the Court granted Acuity’s Motion to Compel
in part as to certain interrogatories and requests for production, the Court finds that other
circumstances here make an award of expenses unjust.
The Court is particularly troubled by Acuity’s correspondence to Perry after the October
24, 2018 telephonic status conference, which misrepresented the Court’s order from that date.
(DNs 74-5, 74-7.) In both its November 26, 2018, and December 4, 2018, Letters to Perry,
Acuity’s counsel stated that the Court had directed Perry to provide answers to portions of Acuity’s
written discovery. (Id.) This is incorrect. While the Court provided preliminary guidance
regarding the dispute between Acuity and Perry on the call, what the Court explicitly ordered was
for Acuity and Perry to consult and attempt to resolve any issues. (DN 67, at PageID # 525.)
Though the Court has no reason to believe Acuity intentionally misrepresented the Court’s Order,
the Court finds that especially given Perry’s status as a pro se Defendant, Acuity’s letters could
have misled Perry regarding his obligations. Because of this issue and because the Court found
some of Acuity’s interrogatories and requests requested information outside the scope of
discovery, the Court holds that other circumstances make an award of expenses unjust and will
deny Acuity’s request for sanctions under Fed. R. Civ. P. 37(a).
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III.
ORDER
For the reasons stated above, IT IS HEREBY ORDERED as follows:
(1)
Acuity’s Motion to Compel (DNs 74, 75) is GRANTED as to Interrogatory Nos. 5
and 9 and Request for Production Nos. 1-24, and 27; GRANTED IN PART and DENIED IN
PART as to Interrogatory Nos. 17(3) and 18(6) and Request for Production Nos. 25, 26, 28, and
29; and DENIED as to Interrogatory Nos. 20-25, and 27-32.
(2)
On or before August 5, 2019, Perry shall serve supplementary answers and
responses in accordance with this Memorandum Opinion and Order as follows:
(a)
Perry shall provide a supplementary answer to Interrogatory No. 5 that
identifies the exhibits he intends, at this time, to introduce at trial.
(b)
Perry shall make a reasonable effort to obtain the date of any payment
referenced in Perry’s previous answers to Interrogatory No. 9 and shall
provide a supplementary answer to Interrogatory No. 9 that either states the
dates of the payments or details the efforts that he made to obtain the same
if he was unable to do so.
(c)
Perry shall make a reasonable effort to obtain the account number of any
account into which he deposited the settlement funds at issue or from which
he paid Mohnsam with the settlement funds at issue and provide a
supplementary answer to Interrogatory Nos. 17(3) and 18(6) that either
states the number for any such account or details the efforts that he made to
obtain the same if he was unable to do so.
(d)
Perry shall provide supplemental responses to Acuity’s requests for
production of documents that specify which of the documents he previously
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produced are responsive to which Request for Production. Perry shall
ensure he has produced all documents within his possession, custody, or
control and is directed to carefully review the Court’s opinion above
regarding the meaning of those terms.
If Perry attempted to obtain
responsive documents but was ultimately unable to do so, he is ordered to
state the same in his supplemental responses.
(e)
As to Acuity’s Request for Production Nos. 25 and 26, Perry is only
required to produce bank account statements for any bank account into
which he deposited the settlement funds at issue or from which he paid
Mohnsam with the settlement funds at issue.
(f)
As to Acuity’s Request for Production Nos. 28 and 29, Perry is only
required to produce any documents related to payments made to Mohnsam.
July 22, 2019
cc: Counsel of record
Pro se Defendant Morgan Bryan Perry
Appeal of this Order is subject to the terms and time limitations of Fed. R. Civ. P. 72(a) and L.R.
72.2.
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