JONES v. FAIRBANK RECONSTRUCTION CORP et al

Filing 105

ORDER ON MOTION FOR SANCTIONS denying without prejudice #93 Motion for Sanctions By JUDGE GEORGE Z. SINGAL. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
EMMIE JONES, as Parent and
Guardian of MJ, a minor,
Plaintiff,
v.
FAIRBANK RECONSTRUCTION
CORP.,

Defendant.

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) Docket no. 2:11-cv-437-GZS
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ORDER ON MOTION FOR SANCTIONS
Before the Court is the fully briefed Motion for Sanctions (ECF No. 93) by Defendant
Greater Omaha Packing Company (“GOPAC”). After receiving leave to file a supplemental
brief, on September 23, 2013, GOPAC filed a supplemental brief in support of the Motion for
Sanctions.

Having reviewed all of the parties’ written submissions, the Motion is hereby

DENIED without prejudice.
I.

LEGAL STANDARD
Federal Rule of Civil Procedure 37(c)(2) provides as follows:
If a party fails to admit what is requested under Rule 36 and if the requesting party
later proves a document to be genuine or the matter true, the requesting party may
move that the party who failed to admit pay the reasonable expenses, including
attorney’s fees, incurred in making that proof. The court must so order unless:
(A) the request was held objectionable under Rule 36(a);
(B) the admission sought was of no substantial importance;
(C) the party failing to admit had a reasonable ground to believe that it might prevail
on the matter; or
(D) there was other good reason for the failure to admit.

Fed. R. Civ. P. 37. The Advisory Committee Notes to Rule 37 indicate that sanctions are
available as “post-trial” relief. See Fed. R. Civ. P. 37 Adv. Comm. Notes to 1970 Am. (“Rule
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37(c) is intended to provide post-trial relief in the form of a requirement that the party
improperly refusing the admission pay the expenses of the other side in making the necessary
proof at trial.”) (emphasis added). Likewise, cases have “uniformly” held that motions under
Rule 37(c)(2) should be made after trial. Wright & Miller, Federal Practice & Procedure § 2290
& n.5 (collecting cases).

II.

BACKGROUND & PROCEDURAL HISTORY
The pending case was filed on November 14, 2011. On April 4, 2012, Defendant

Fairbank Reconstruction Corp. filed a notice of suggestion of bankruptcy (ECF No. 34), which
essentially stayed this case. (See Procedural Order & Order to Show Cause (ECF No. 35 & 42).
The stay was subsequently lifted on June 22, 2012 (See Am. Procedural Order (ECF No. 47).
After the stay was lifted, this Court granted GOPAC’s Partial Motion to Dismiss Crossclaims
thereby limiting Fairbank’s crossclaims against GOPAC to “contractual indemnity for any
amounts related to Plaintiff’s claims.” (Order on Partial Motion to Dismiss Cross-Claims (ECF
No. 55) at 10-11.) The Court then set a schedule for Fairbank to brief its motion for summary
judgment based on collateral estoppel. (See Procedural Order (ECF No. 56).) In the same order,
the Court refused a request to stay discovery until it could issue a decision on Fairbank’s
anticipated summary judgment motion.

(Id.)

Therefore, the Court issued an Amended

Scheduling Order (ECF No. 57) and discovery began in earnest.
In accordance with Federal Rule of Civil Procedure 36, GOPAC served fifty-one separate
requests to admit on Fairbank on November 1, 2012 (ECF No. 93-2). On December 10, 2012,
Fairbank responded to the requests to admit (ECF No. 93-3). The discovery deadline in the
pending case was set to be February 12, 2013. By letter dated March 15, 2013, counsel jointly

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requested a discovery conference with the Magistrate Judge. As a result of that conference and a
subsequent conference held on April 25, 2013, the parties were ordered to engage in additional
electronic discovery. (See Reports of Hearing & Orders (ECF Nos. 80 & 86).
Following receipt of Fairbank’s electronic discovery, GOPAC filed the pending Motion
for Sanctions on June 3, 2013. GOPAC claims that the electronic discovery clearly shows that
Fairbank should have admitted five of the requests to admit GOPAC had previously served. On
June 24, 2013, Fairbank filed seven amended responses to GOPAC’s requests to admit (ECF 982); four of those amendments address prior denials that serve as the basis for GOPAC’s Motion
for Sanctions.
As relevant to the Motion for Sanctions, Fairbank’s amended responses reflect that as of
June 24, 2013, it has admitted the following facts:
(1) Fairbank product shipped under invoice 30243 was processed with GOPAC chuck
trim, not GOPAC 50-50 sirloin trim. (Am. Response ¶23.)
(2) Fairbank product shipped under invoice 30243 was not processed with ground beef
from batches formulated and ground between 7:46 a.m. and 1:42 p.m. on September
16, 2009. (Am. Response ¶¶41 & 42.)
(3) Fairbank product shipped under invoice 30243 was not processed with ground beef
from batches made with GOPAC 50/50 sirloin trim with lot numbers 324432,
324438, 324442, 324443, 324433. (Am. Response ¶44.)
Prior to providing its Amended Responses to GOPAC’s Request to Admit, Fairbank had
indicated it denied all of the above facts. (See Fairbank’s Responses to GOPAC’s Requests to
Admit (ECF No. 93-3).) Fairbank’s denials rested in large part on its position that collateral
estoppel would bar re-litigation of the matters that GOPAC sought to have Fairbank admit. (See

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id. ¶¶ 23, 41-44.) In an order being filed today, the Court has clarified the extent to which
collateral estoppel will apply at any upcoming trial of the claims brought in the pending case.

III.

DISCUSSION
GOPAC’s Motion for Sanctions is premature. As GOPAC correctly states at the end of

its Supplemental Brief (ECF No. 103), “the integrity of the ‘trace-back’ of the meat consumed by
each plaintiff is essential to a fair determination of responsibility.” (Id. at 9.) As the Court found
in its decision denying in part Fairbank’s Motion for Summary Judgment, the present case
“poses a unique causation question not posed or answered in the Long/Smith Case.” (See Order
on S.J. (ECF No. 104) at 17.) As a result, “the parties to the pending case are entitled to have a
full opportunity to litigate whether it can be established by a preponderance of the evidence that
adulterated GOPAC beef trim was used to make the Shaw’s case ready ground beef purchased
by Emmie Jones and whether M.J.’s consumption of the same ground beef caused M.J.’s illness
and injuries in October 2009.” (Id. at 20-21.)
On the current record, it is not possible to discern what each Defendant will seek to
introduce regarding the trace-back and causation of M.J.’s illness, nor is it possible for the Court
to determine what the preponderance of the evidence will prove regarding any trace-back of beef
consumed by M.J.1 Given this pre-trial uncertainty, the Court cannot say the recently admitted

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Recent filings indicate that the 85/15 ground beef that allegedly caused M.J.’s illness potentially was shipped from
Fairbank to Shaw’s on September 19, 2009 under an entirely different shipping invoice, Invoice 30247. (See
3/27/2013 Stevens Letter (ECF No. 95-5) at 6 n.1; Fairbank Reply (ECF No. 64) at 5; GOPAC Sur-Reply (ECF No.
73) at 8). If the parties pursue this trace-back at trial, it is not clear what relevance, if any, Invoice 30243 would
have at a trial on the pending claims.

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facts regarding Invoice 30243 will have any substantial importance in this case or that GOPAC
will be required to introduce any of the belatedly obtained admissions.2
In light of the Court’s finding that GOPAC’s Motion is procedurally premature, the Court
declines to address the other substantive arguments contained in the briefing on the Motion for
Sanctions. In the Court’s assessment, the merits of these arguments are best addressed on a more
complete post-trial record.
IV.

CONCLUSION
For reasons just explained, GOPAC’s Motion for Sanctions (ECF No. 93) against

Fairbank is hereby DENIED without prejudice to GOPAC renewing its request post-trial.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 13th day of November, 2013.

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To the extent GOPAC’s current motion can be read to suggest that the Court can or must award Rule 37(c)(2)
sanctions in the pending case because Fairbank should have come forward with the evidence or admissions
regarding Invoice 30243 during the Long/Smith case, the Court flatly rejects that theory. Rule 37(c)(2) awards
sanctions for the cost of “making . . . proof” in a particular case, not for “costs incurred seeking the truth” postjudgment in an entirely different case. (See GOPAC’s Reply (ECF No. 99) at 7.)

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