Register v. Mix Bros Tank Services, Inc. et al
ORDER and REASONS: ORDERED that 12 Motion to Compel is GRANTED.FURTHER ORDERED that the Plaintiffs are to respond to the Defendants discovery request no later than ten days from the issuance of this order.IT IS FURTHER ORDERED that Mix Bros. Tank Services, Inc. and Dave Morrison are awarded attorneys fees and costs in connection with the Motion to Compel. FURTHER ORDERED that the Defendants shall file a motion to fix attorney fees into the record by May 23, 2017 as stated herein. Any opposition to the fee application shall be filed no later than May 30, 2017. The motion shall be set for hearing on June 7, 2017, to be heard without oral argument. Signed by Magistrate Judge Karen Wells Roby. (cml)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KELLIE REGISTER, ET AL
MIX BROS TANK SERVICES, INC., ET AL
SECTION: “F” (4)
Before the Court is a Motion to Compel (R. Doc. 12) filed by Defendants Mix Bros. Tank
Services, Inc. (“Mix Bros.”) and Dave Morrison (“Morrison”) (collectively “Defendants”) seeking
an order from the Court to compel Kellie Register (“Register”) and her minor daughter T.R.
(“T.R.”) (collectively “Plaintiffs”) to respond to their First Sets of Interrogatories and First Sets of
Requests for Production of Documents. The motion was not opposed. The motion was submitted
on May 10, 2017. For the following reasons, the Motion to Compel is GRANTED.
This action was removed from the 29th Judicial District Court for the Parish of St. Charles
on January 11, 2017. R. Doc. 1. The Plaintiffs allege that Register was employed by Mix Bros.
for approximately eight years and was permitted to have T.R. accompany her to work during
summer vacation. R. Doc. 1-1, p. 2. On or about June 1, 2016, while the Plaintiffs where located
at the offices of Mix Bros, Defendant John Kenny (“Kenny”) threw a snap pop, which is a small
pyrotechnic object, at T.R. The snap pop exploded near T.R.’s face and caused her fear of harm to
her body. Id. at p. 3. At the time, both Kenny and Morrison laughed at T.R.’s reaction. The
following day, Register confronted Morrision about the incident; however, Morrison allegedly
insulted the Plaintiffs in response and ordered them to leave. Id. Register did not return to work
the next day after informing Morrison that she could not return because of emotional distress,
anxiety, and concern for her daughter. Id. Register was allegedly terminated thereafter. Id.
The Plaintiffs also alleged that Morrison sexually assaulted Register in May 2016 when he
approached her and made non-consensual contact while placing and removing a stack of papers
from Register’s chest. Id.
Finally, Plaintiffs also allege that Register has a documented history of anxiety, depression,
and related mental health issues which were frequently triggered by Morrison screaming in the
office and insulting women. Id. at p. 4. Plaintiffs further allege that Register respectfully requested
accommodations from Morrison, but that she was denied any accommodation and further
subjected to abuse and harassment until her termination. Id. Plaintiffs also state that Register
complained about Morrison to another immediate supervisor as well as personnel in Mix Bros.’s
Canada office, but no remedial action was taken. Id. For all the foregoing, the Plaintiffs have
asserted claims against the Defendants for negligence, violations of the Family Medical Leave Act,
sexual harassment, and a host other state and federal law claims.
At this time, Defendants Mix Bros. and Morrison have filed a motion to compel seeking
responses to their respective discovery requests from the Plaintiffs. R. Doc. 12. The Defendants
state that they served their discovery requests on the Plaintiffs on February 14, 2017. R. Doc. 121, p. 1. Moreover, counsel for the Defendants made a number of attempts to obtain the discovery
without the Court’s intervention, including the granting of extensions to reply until April 24, 2017.
On April 25, 2017, the Defendants filed the instant motion after only being provided an
authorization form/release of information form signed by Register. Id. at p. 1-3. The Defendants
also seek an award of fees in connection with the instant motion.
Standard of Review
Discovery of documents, electronically stored information, and things is governed by
Federal Rule of Civil Procedure 34. Rule 34 allows a party to request the production of “any
designated documents or electronically stored information” or “any tangible things.” Id. Similarly,
Rule 33 allows a party to serve another party written interrogatories which “must, to the extent it
is not objected to, be answered separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3).
Both Rule 33 and 34 allow a party to ask interrogatories and request production to the extent of
Rule 26(b). Fed. R. Civ. P. 33(a)(2); 34(a).
Federal Rule of Civil Procedure 37 provides sanctions for failure to cooperate in discovery.
Rule 37(a) allows a party in certain circumstances to move for an order compelling discovery from
another party. In particular, Rule 37(a)(3)(b)(iii)-(iv) allows a party seeking discovery to move for
an order compelling an answer or production of documents where a party “fails to answer an
interrogatory” or “fails to produce documents.” An “evasive or incomplete” answer or production
is treated the same as a complete failure to answer or produce. Fed. R. Civ. P. 37(a)(4).
In addition to alleging that the responding party has failed to properly cooperate with
discovery, a motion to compel under Rule 37(a) must also “include a certification that the movant
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. R. Civ. P. 31(a)(1).
Note, if the motion is granted, 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.” Fed. R. Civ. P. 37(a)(5)(A). However, the Court will not order payment
if the opposing party’s nondisclosure was “substantially justified” or circumstances make the
award unjust. Id.
For the instant motions to compel, the Defendants have alleged that the Plaintiffs have
failed to properly respond to their interrogatories and requests for production of documents.
Defendants have provided the proper certification for the motion to compel under Rule 37(a). R.
Doc. 12-1, p. 2-3. At this time, the Plaintiffs have not yet responded to the discovery requests and
have not opposed the instant motion to compel. As such, the Defendants have properly filed a
motion to compel under Federal Rule of Civil Procedure 37(a)(3)(b)(iv). Therefore, the Court
grants the Defendants’ motion to compel.
Moreover, because the motion to compel will be been granted, the Court may impose
reasonable expenses in making the instant motion to compel on the Defendant as the Plaintiff has
requested. Fed. R. Civ. P. 37(a)(5)(A). Because the Plaintiffs have failed to oppose the instant
motion, there is no evidence of substantial justification for failing to respond nor is there any
evidence of circumstances that would make the imposition of costs unjust. As such, the Court will
award reasonable expenses in making the instant motion to compel to the Defendants.
IT IS ORDERED that the Defendants' Motion to Compel (R. Doc. 12) is GRANTED.
IT IS FURTHER ORDERED that the Plaintiffs’ are to respond to the Defendants’
discovery request no later than ten days from the issuance of this order.
IT IS FURTHER ORDERED that Mix Bros. Tank Services, Inc. and Dave Morrison are
awarded attorneys’ fees and costs in connection with the Motion to Compel (R. Doc. 12).
IT IS FURTHER ORDERED that the Defendants shall file a motion to fix attorney fees
into the record by May 23, 2017, along with: (1) an affidavit attesting to its attorney’s education,
background, skills and experience; (2) sufficient evidence of rates charged in similar cases by other
local attorneys with similar experience, skill and reputation and; (3) the documentation required
by Local Rule 54.2. Any opposition to the fee application shall be filed no later than May 30,
2017. The motion shall be set for hearing on June 7, 2017, to be heard without oral argument.
New Orleans, Louisiana, this 10th day of May 2017.
KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE
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