McCleery v. Speed et al

Filing 55

ORDER granting 40 Motion Motion for Leave; granting 40 Motion for Extension of Time to File Response/Reply - Because Carmen's Interrogatories (ECF No. 40-3) do exceed 25, and because there is no clear indication the propounded discov ery is unwarranted under Rule 26, Carmen's Motion for Leave to Propoud More than 25 Interrogatories (ECF No. 40) is GRANTED. Defendants shall have 30 days from the date of this Order to respond to the discovery requests. Because both parti es seek clarification of the relevancy of Carmen's propounded discovery to the remaining claims, Carmens Request for Clarification (ECF No. 40) is GRANTED. Due to the pendency of this ongoing discovery dispute, and because it is unopposed, Carmen's Request for Extension (ECF No. 40) is GRANTED. Carmen shall have 21 days from receipt of Defendants' discovery responses to file a response to Defendants' Motion for Summary Judgment. Signed by Magistrate Judge Joseph H.L. Perez-Montes on 11/18/2021. (crt,Tice, Y) (c)

Case 1:20-cv-01187-DCJ-JPM Document 55 Filed 11/18/21 Page 1 of 10 PageID #: 616

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
CARMEN MCCLEERY,
INDIVIDUALLY AND AS
EXECUTRIX OF THE
SUCCESSION OF DONALD
MCLEERY, SR.,
Plaintiff

CIVIL ACTION NO. 1:20-CV-01187

VERSUS

JUDGE DAVID C. JOSEPH

MELANIE MCCLEERY SPEED,
ET AL.,
Defendants

c

MAGISTRATE JUDGE PEREZ-MONTES

MEMORANDUM ORDER
Before the Court is “Plaintiff’s Motion for Leave to Propound More than 25
Interrogatories, Request for Declaration of Relevancy, and Request for an Extension
of the November 4, 2021 Deadline for an Opposition to the Pending Motion for
Summary Judgment Until 21 Days After Receipt of Answers to Interrogatories”
(hereinafter, “Motion for Leave,” “Request for Declaration,” and “Request for
Extension”) (ECF No. 40) filed by Plaintiff Carmen J. Cook McCleery (“Carmen”).
Defendants Melanie Speed (“Speed”) and Donald T. McCleery, Jr. (“McCleery”)
(collectively, “Defendants”) oppose only to the extent Carmen seeks leave to exceed
25 parts and subparts under Fed. R. Civ. P. 33 and to the extent it is premature. ECF
No. 42.

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I.

Background
Carmen filed this action, asserting diversity jurisdiction. ECF No. 1. Carmen

seeks relief in her capacity as executrix of the succession and in her personal capacity.

Id.

As executrix, Carmen asserts claims related to her duty as succession

representative to account for the decedent’s property. Id. She claims Speed and
McCleery took items of the decedent’s property without providing notice or an
accounting. Id. Carmen seeks an order mandating return of the decedent’s property
to her so she may fulfill her obligations as executrix of the estate. Id.
In her personal capacity, Carmen asserts separate claims for detrimental
reliance, unjust enrichment, and undue influence. She claims she loaned various
amounts of money and donated property to the decedent based on his assurances that
he named her the primary beneficiary on his three life insurance policies. Id. Carmen
maintains that she is entitled to the value of the life insurance proceeds otherwise
paid or payable to the decedent’s children. Id.
The Court dismissed all of Carmen’s claims against Defendants, except to the
extent she alleges they were unjustly enriched “in connection with [Plaintiff’s] undue
influence claim . . . relating to the decedent’s designation of his life insurance
beneficiaries.” ECF Nos. 27 at 14, 51 at 1.
On October 14, 2021, Defendants filed a First Motion for Summary Judgment
(ECF No. 37), seeking dismissal of all remaining claims. On October 19, 2021,
Carmen filed this motion due to an ongoing discovery dispute concerning Defendants’
objections to the number and relevance of the interrogatories. ECF No. 40. On

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November 1, 2021, the Court held a telephonic status conference with the parties.
ECF No. 51.
II.

Law and Analysis
A.

Carmen may propound the Interrogatories exceeding 25.

On October 3, 2021, Carmen propounded discovery on Defendants. ECF Nos.
40, 40-3. On October 15, 2021, Defendants objected to the number of Interrogatories,
including subparts, and their relevancy. ECF No. 40-4. The parties engaged in a
discovery teleconference on October 19, 2021. ECF Nos. 40, 40-4 at 2.
Thereafter, they sought – and had – a status conference with the Court. ECF
Nos. 41, 44, 51. The Court instructed that “any further discovery in this matter is
limited to the claims that remain pending.” ECF No. 51. Otherwise, specific questions
were deferred to the undersigned. Id.
Carmen now seeks leave to propound her Interrogatories (ECF No. 40-3),
including their subparts. ECF No. 40 at 2. If granted, Carmen also requests a
deadline be set for Defendants’ response. Id. If denied, Carmen seeks leave to
propound an amended set of Interrogatories, as well as deadlines for service and
Defendants’ response. Id.
Rule 33 of the Federal Rules of Civil Procedure provides for the service of
written interrogatories. Unless otherwise stipulated or ordered by a court, a party
seeking discovery under Rule 33 may serve “no more than 25 written interrogatories,
including all discrete subparts.” Fed. R. Civ. P. 33(a)(1)-(2). “Each interrogatory
must, to the extent it is not objected to, be answered separately and fully in writing

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under oath.” Fed. R. Civ. P. 33(b)(3). The grounds for objections must be stated with
specificity. Fed. R. Civ. P. 33(b)(4). A party seeking discovery may move for an order
compelling an answer, designation, production, or inspection if a party fails to answer
an interrogatory submitted under Rule 33. Fed. R. Civ. P. 37(a)(3)(B)(iii).
Where a party seeks leave to serve more than 25 interrogatories, leave “may
be granted to the extent consistent with Rule 26(b)(1) and (2).” Fed. R. Civ. P. 33(a)(1);

Estate of Manship v. United States, 232 F.R.D. 552, 559 (M.D. La. 2005). Rule
26(b)(1) provides that “parties 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. Proc. 26(b)(1). Rule 26(b)(2) instructs that discovery should
be limited when:
(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). The numerical limit on interrogatories is intended to
protect against the potentially excessive use of interrogatories, not to prevent
necessary discovery. Manship, 232 F.R.D. at 554 n.1.
Here, Carmen’s discovery requests included 31 Interrogatories, 28 Requests
for Production, and 14 Requests for Admission. ECF No. 40-1 at 1. She admits

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Interrogatories 2-4, and 7-31 all contain subparts. Id. at 2. However, she contends
all subparts fall within Rule 33’s “related question” test. Id.
Defendants contend Carmen’s propounded discovery exceeds “200 parts and
subparts.” ECF No. 40-4 at 1. Defendants further contend the pending Motion for
Summary Judgment involves a pure issue of law to determine whether Carmen is
entitled to relief under La. Civ. Code art. 1926. ECF No. 42 at 2. Thus, they assert a
general relevance objection. They contend nothing provided in discovery will change
the Court’s analysis of their motion. Id. at 3. Defendants further argue that even a
liberal interpretation shows at a minimum 104 parts and subparts. Id. at 4.
In its Ruling (ECF No. 27), this Court previously held that “Plaintiff is entitled
to conduct discovery regarding whether Donald, Sr.’s capacity was vitiated at the time
he executed the “Change of Beneficiary” forms.” ECF No. 27 at 14. Additionally, the
Court determined Carmen “maintains a plausible unjust enrichment claim in
connection with her undue influence claim.” Id. The Court denied Defendants’
Motion to Dismiss to the extent Carmen “can establish facts supporting a cause of
action for undue influence relating to the decedent’s designation of his life insurance
beneficiaries.” Id. In making this determination, the Court acknowledged Carmen’s
claim that the “forms should be nullified ‘as a result of overreaching and undue
influence on the part of Melanie Speed and Donald, Jr.’” Id.
Carmen argues that the basis of her unjust enrichment claim is that she loaned
various amounts of separate property to Donald, Sr. based on his representation that
she was the beneficiary under his life insurance policies. ECF No. 40-1 at 2. She

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contends he failed to do what he said he would, and that Defendants received or stand
to receive approximately $200,000 in life insurance proceeds. Id. at 3. Carmen argues
every discovery request is “relevant to the claim of unjust enrichment and to
establish[]

overreaching/manipulation/collusion”

between

Donald,

Sr.

and

Defendants. Id.
Here, Carmen is entitled to any facts supporting: (1) “whether Donald, Sr.’s
capacity was vitiated” at the time he executed change of beneficiary forms; (2) any
facts supporting the claims or defenses for unjust enrichment; and (3) any facts
concerning undue influence as it relates to Donald, Sr.’s designation of life insurance
beneficiaries.

Absent objections, the Court need not make any specific

determinations as to relevancy of each discovery request. And any ruling as to each
request is premature under the present motion before the Court.
In

determining

whether

subparts

should

be

considered

separate

interrogatories, courts consider “whether the interrogatory subparts are ‘logically or
factually subsumed within and necessarily related to the primary [interrogatory]
question.’” Manship, 232 F.R.D. at 554 (quoting Dang v. Cross, 2002 WL 432197 at
*3 (C.D. Cal. Mar. 18, 2002)) (alteration in original)). In other words, a court should
determine “whether the first question is primary and subsequent questions are
secondary to the primary question.” Id. at 554.
Defendants offer no analysis to address why the Interrogatory’s subparts are
“discrete.” Except Defendants note as one example Interrogatory Nos. 2 and 3, which
do clearly contain “discrete subparts” constituting multiple interrogatories. ECF Nos.

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41-3, 42 at 3-4. The Court will not separately analyze each individual Interrogatory
for its discrete subparts. But in reviewing the Interrogatories, it appears Carmen’s
requests exceed Rule 33’s numerical limit.1
However, Carmen is granted leave to propound her first set Interrogatories
(ECF No. 40-3), which exceeds 25, and the Court overrules Defendants’ objection as
to the number of discovery requests.2 There is no indication on the record before the
Court that Carmen’s use of interrogatories has been excessive. See Manship, 232
F.R.D. at 554 n.1. Additionally, under Rule 26(b)(2)(C), the Court considers the
burden and expense or the likely benefit of the proposed discovery. Carmen states
her lack of resources and intent not to seek depositions in requesting leave.
Additionally, all other claims have been dismissed, and it does not appear any
discovery has been had concerning her remaining claims. With the pendency of

Rule 33(a) does not define “discrete subparts,” but the Advisory Committee states that “a
question asking about communications of a particular type should be treated as a single
interrogatory even though it requests the time, place, persons present, and contents be stated
separate for each such communication.” Fed. R. Civ. P. 33(a), Advisory Committee Notes to
1993 Amendment. The Court also notes that coordinating requests for documents contained
within an interrogatory should be treated as a request for production and will not constitute
a “discrete subpart.” Also, “identifying a person by name, address, phone number and place
of employment is necessary to accurately identify a person and does not count as four
separate interrogatories.” Manship, 232 F.R.D. at 554, n.2. But an interrogatory which
requests disclosure of a party’s basis for denying individual requests for admission
constitutes a multiple interrogatory “for the purposes of the numerical limit.” See Cubellis,
Inc. v. LIFT, 2008 WL 11355010, at *3 (E.D. La. Oct. 27, 2008). And “when an interrogatory
asks the responding party to state facts, identify witnesses, or identify documents supporting
the denial of each request for admission contained in a set of requests for admission, it usually
should be construed as containing a subpart for each request for admission contained in the
set.” Id. (citation omitted).
1

This has no bearing on Defendants’ ability to state their specific objections to each discovery
request in accordance with the Federal Rules of Civil Procedure.
2

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Defendants’ Motion for Summary Judgment, the discovery will very likely help
resolve remaining issues.
Under Rule 33(b)(2), the responding party must serve its answers and any
objections within 30 days after being served the interrogatories. Fed. R. Civ. P.
33(b)(2). There is nothing in the record indicating whether Defendants have
responded to any of Carmen’s discovery requests.
Given the ongoing discovery dispute, the Court grants an extension to
Defendants to respond to Carmen’s discovery requests (ECF No. 40-3) within 30 days
of the date of this Order.3 Defendants are instructed to answer each interrogatory –
to the extent it is not specifically objected to – separately and fully in accordance with
Rule 33.4
B.

Carmen’s Request for Declaration (ECF No. 40) is granted.

Carmen seeks an order requiring Defendants to answer all the Interrogatories
on the basis that they are “reasonably calculated to lead to the discovery of admissible
evidence relating to her claims of unjust enrichment and overreaching.” ECF No 40
at 3. Defendants do not oppose. ECF No. 42.5 Having no opposition and determining
relevance as discussed above, Carmen’s Request for Declaration (ECF No. 40) is
GRANTED.

Carmen impliedly consents as she requests the Court set a deadline for responses upon
resolution of the dispute.
3

Any objections to each Interrogatory must be stated with specificity. Fed. R. Civ. P. 33(b)(4).
If asserting any privilege or work-product, Defendants must produce a privilege log.
4

Defendants also requested a telephonic discovery conference to discuss the relevancy of the
propounded discovery to the remaining claims. ECF Nos. 41, 42 at 2, 51.
5

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C.

Carmen’s unopposed Request for Extension (ECF No. 40) is granted.

The Court set a deadline for any response to Defendants’ Motion for Summary
Judgment for November 4, 2021. ECF No. 38. On October 19, 2021, due to the
ongoing discovery dispute, Carmen filed this request (ECF No. 40) for a 21-day
extension to oppose Defendants’ Motion, beginning from the deadline requested
herein for discovery responses. ECF No. 40-1 at 3. Defendants do not oppose. ECF
No. 42 at 2.
Thus, Carmen’s Request for Extension (ECF No. 40) is GRANTED. Carmen is
allowed 21 days, beginning from receipt of responses to discovery, to file a response
to Defendants’ Motion for Summary Judgment.
III.

Conclusion
Because Carmen’s Interrogatories (ECF No. 40-3) do exceed 25, and because

there is no clear indication the propounded discovery is unwarranted under Rule 26,
Carmen’s Motion for Leave (ECF No. 40) is GRANTED. Defendants shall have 30
days from the date of this Order to respond to the discovery requests.
Because both parties seek clarification of the relevancy of Carmen’s
propounded discovery to the remaining claims, Carmen’s Request for Clarification
(ECF No. 40) is GRANTED.
Due to the pendency of this ongoing discovery dispute, and because it is
unopposed, Carmen’s Request for Extension (ECF No. 40) is GRANTED. Carmen
shall have 21 days from receipt of Defendants’ discovery responses to file a response
to Defendants’ Motion for Summary Judgment.

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18th
THUS DONE AND SIGNED in Alexandria, Louisiana, on this _____ day of
November 2021.
__________________________________________
JOSEPH H.L. PEREZ-MONTES
UNITED STATES MAGISTRATE JUDGE

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