Blind Industries and Services of Maryland et al v. Route 40 Paintball Park

Filing 21

MEMORANDUM OPINION granting in part and denying in part 13 Motion to Compel. Signed by Magistrate Judge Stephanie A Gallagher on 7/17/12. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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BLIND INDUSTRIES AND SERVICES
OF MARYLAND, et al.
Plaintiffs,
v.
ROUTE 40 PAINTBALL PARK,
Defendant
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Case No.: WMN-11-3562

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MEMORANDUM OPINION
Plaintiffs Blind Industries and Services of Maryland, Marco Carranza, James Konechne,
and Ronald Cagle filed this lawsuit against Defendant Route 40 Paintball Park. The Complaint
alleges that the individual Plaintiffs, who are legally blind, were denied the opportunity to play
paintball at Defendant’s paintball park, in violation of the Americans with Disabilities Act and
the Maryland White Cane Law.

This Memorandum Opinion addresses Plaintiff Marco

Carranza’s (“Plaintiff’s”) Motion to Compel, ECF No. 13, and the opposition and reply thereto. 1
Two specific issues remain for resolution from Plaintiff’s original Motion to Compel: (1)
Plaintiff’s request that Defendant produce documents relating to a civil suit involving an injury
sustained at Defendant’s paintball fields; and (2) Plaintiff’s request that Defendant provide
additional factual support for its affirmative defenses. I find that a hearing is unnecessary in this
case. See Local Rule 105.6 (D. Md. 2011). For the reasons stated herein, Plaintiff’s Motion to
Compel is granted in part and denied in part.

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This case has been referred to a magistrate judge by Judge Nickerson to resolve discovery
disputes and related scheduling matters. ECF No. 18.

I.

Procedural History
Plaintiff served discovery requests on Defendant on March 15, 2012. Defendant served

its answers and responses on April 16, 2012. In the weeks that followed, the parties engaged in
appropriate good faith negotiations to attempt to resolve the remaining disputed issues. See
generally Attachments to Pl. Mot. to Compel. Although the negotiations were ongoing, the
Local Rules require that a motion to compel be served within 30 days of receipt of dissatisfactory
responses. Local Rule 104.8(a) (D. Md. 2011). As a result, Plaintiff served the instant motion
on May 17, 2012.
After Plaintiff served his motion, counsel conferred on May 18, 2012.

At that

conference, Defendant promised to consider the issues and to respond to Plaintiff. Defendant
sent Plaintiff a letter responding to the disputes on June 1, 2012, in which Defendant agreed to
produce some, but not all, of the requested information. [ECF No. 16-1]. Because Plaintiff did
not send a response to that letter, Defendant believed that the issues had been resolved to
Plaintiff’s satisfaction. Defendant therefore did not serve a formal opposition to Plaintiff’s
Motion to Compel before the deadline on June 4, 2012.
Plaintiff, however, actually was dissatisfied with Defendant’s response to his Motion to
Compel. On June 13, 2012, Plaintiff filed the instant motion with the Court, and Defendant
subsequently filed an opposition. Plaintiff contends that Defendant’s Opposition should not be
considered because it was filed after the deadline.

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II.

Analysis
This is a case in which compliance with the deadlines set forth in the Local Rules

conflicted with the parties’ continuing efforts to resolve their dispute informally.

Given

Defendant’s reasonable efforts to resolve the matter during the parties’ negotiations, this Court
will not take the draconian step of striking Defendant’s Opposition. However, counsel should
note that all future filings should be made in accordance with the deadlines contained in the
Local Rules.
Plaintiff submits that Defendant has been dilatory and has produced discoverable material
significantly after the applicable deadlines.

Because Defendant responded late to certain

requests without conferring with Plaintiff to request additional time, Defendant failed to “make
good faith efforts to respond to discovery requests within the time prescribed by th[e] rules,” in
violation of Discovery Guideline 9.a. See Mezu v. Morgan State Univ.¸ 269 F.R.D. 565, 574-75
(D. Md. 2010). Although Defendant’s delays were unjustified, Defendant’s eventual but belated
production of certain discovery cannot be attributed directly to Plaintiff’s Motion to Compel, as
opposed to the ongoing negotiations and efforts by the parties to resolve their disagreements.
Moreover, the most appropriate remedy for Defendant’s delays would have been a reasonable
extension of the discovery deadline to ensure Plaintiff’s ability to consider Defendant’s belated
responses. Plaintiff did not request an extension of the discovery deadline prior to its expiration
on July 16, 2012, and it appears from the parties’ status report (ECF No. 19) that discovery was
successfully completed.
With respect to the motion to compel, the parties cite two specific areas remaining in
dispute. Those issues are addressed sequentially below.

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A. The Bart Lawsuit
Plaintiff’s Document Request No. 11 asked for, “All Documents and Communications
relating to complaints, grievances, citations, or claims made against the Park by any person for . .
. negligence of any type, or safety hazards of any type.” Pl. Mot. to Compel at 15. Defendant
responded that it would “produce non-privileged documents from January 2009 to the present
that are responsive to Request No. 11.” Id. at 16. However, after receiving Defendant’s
responsive production, Plaintiff noted that Defendant failed to produce documents relating to a
tort action filed by E. West Bart alleging unsafe conditions at Defendant’s paintball fields (“the
Bart lawsuit”). [ECF No. 17-1]. Defendant responds that the Bart lawsuit is irrelevant to
Plaintiffs’ claims. Def. Opp. at 4.
The Bart lawsuit is entirely dissimilar to the instant action, because it involved alleged
injury to a paintball player instead of alleged discrimination against prospective paintball
players. However, because Defendant contends that the individual Plaintiffs’ visual impairments
posed a safety concern to Plaintiffs and others, basic information about recent safety issues
encountered by other patrons at the paintball park meets the low standard for relevance required
for discovery. See Fed. R. Civ. P. 26(b)(1) (“Relevant information need not be admissible at the
trial if the discovery appears reasonably calculated to lead to the discovery of admissible
evidence.”). Plaintiff’s request, however, goes beyond just basic information by seeking all
responsive documents and communications about any such incidents. Requiring an extensive
review of files pertaining to an unrelated lawsuit, in light of the limited relevance to and factual
dissimilarity to Plaintiffs’ claim, would violate the principles of proportionality that Fed. R. Civ.
P. 26(b)(2)(C) applies to all discovery. See Victor Stanley, Inc. v. Creative Pipe, Inc., 269

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F.R.D. 497, 516 (D. Md. 2010).

The burden and expense of such a review would be

compounded by issues of attorney-client privilege inherent in reviewing files from a legal action.
Basic information about Mr. Bart’s lawsuit is readily available. In fact, it is possible that
Plaintiff already has obtained the Bart file from the state courthouse. This Court will therefore
grant Plaintiff’s motion in part, but will not impose on Defendant the entire burden to produce
records that Plaintiff might have obtained through his own efforts. If Plaintiff so requests,
Defendant is ORDERED to produce to Plaintiff copies of any publicly filed documents
pertaining to the Bart litigation that are in Defendant’s possession. The parties are to share
equally the cost of copying and producing any such records. If any of the public filings from the
Bart case are not in Defendant’s possession, Defendant should specifically advise Plaintiff, who
can then seek to obtain those records from the state court.
B. Factual Support for Affirmative Defenses
Plaintiff further contends that Defendant failed to provide adequate answers to Plaintiff’s
Interrogatories No. 11 and 13, which sought the factual basis underlying two of Defendant’s
affirmative defenses.

Most district courts, including this one, have determined that the

heightened pleading standard enunciated in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)
and Ashcroft v. Iqbal, 556 U.S. 662, 677-84 (2009) apply to affirmative defenses. See, e.g.,
Haley Paint Co. v. E.I. DuPont de Nemours and Co., 279 F.R.D. 331 (D. Md. 2012); Bradshaw
v. Hilco Receivables, LLC, 725 F.Supp.2d 532, 536 (D. Md. 2010). As a result, Defendant needs
to provide sufficient factual support to “ensure that an opposing party receives fair notice of the
factual basis” for the assertion of each affirmative defense. Haley Paint, 279 F.R.D. 331. The
pleading standard requires that the “non-conclusory factual content and the reasonable inferences
from that content[], must plausibly suggest a cognizable defense available to the defendant.” Id.

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(citing Ulyssix Techs., Inc. v. Orbital Network Engineering, Inc., No. ELH-10-2091, 2011 WL
631145 at * 15 (D. Md. Feb. 11, 2011)). Although Plaintiff requests that Defendant’s two
affirmative defenses be stricken, that action is disfavored “because striking a portion of a
pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory
tactic.” Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001).
Plaintiff’s Interrogatory No. 11 sought information to support the affirmative defense that
“the access sought by Plaintiffs and the relief that they request would pose a direct threat to the
health and safety of Plaintiffs and/or others.” In response, Defendant cited to its answers to
Interrogatories No. 5 and 9. Defendant’s Answer to Interrogatory No. 5 directly quoted the
“Playing Rules” of the paintball park, which include the rule, “Blind shooting is not allowed.
Look at what you are shooting.” Pl. Mot. to Compel at 9. Defendant’s Answer to Interrogatory
No. 9 stated, in relevant part, “the facility was extremely crowded,” “when the individuals’
reservation was made, Defendants were not informed that they were visually impaired,” “they
did not have a sighted person with them to assist them,” “they had not signed Defendant’s
Waiver and Release of Liability,” and “they were unable to comply with the facilities’ rules and
conditions of use.” Pl. Mot. to Compel at 10-11.
For the purposes of this Motion to Compel, this Court need not consider whether the rule
prohibiting “blind shooting” constitutes discrimination against visually impaired individuals.
The limited question before this Court is whether Defendant’s Answers to Plaintiff’s
Interrogatories provided fair notice of the basis of Defendant’s assertion of its affirmative
defenses. This Court finds that the answers were sufficient. Taken in totality, and drawing
reasonable inferences from the facts provided, the Answers to Interrogatories No. 5 and 9
illustrate that Defendant asserts that allowing Plaintiffs to play paintball in a crowded facility

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without assistance from a sighted individual would pose a threat to the health and safety of
Plaintiffs and others.
Similarly, Interrogatory No. 13 sought information to support the affirmative defense
that, “Plaintiffs failed to conform to the usual and regular requirements, standards, and
regulations upon which access is conditioned.” In response, Defendant again cited to its Answer
to Interrogatory No. 5. That answer included the rule prohibiting “blind shooting.” Although
Defendant certainly could have provided additional factual explication of the connection
between the individual Plaintiffs’ visual impairments and the paintball park’s rules, the Twombly
and Iqbal standards do not require such explication if a reasonable and adequate inference can be
drawn from the facts provided. A reasonable person can infer Defendant’s argument: that a
person with visual impairment cannot comply with a regulation requiring a player to look at his
or her target.

Whether that argument is valid, and whether that regulation violates anti-

discrimination laws, will be decided in the substantive adjudication of this case, not in the
context of a discovery dispute. As a result, Plaintiff’s Motion to Compel further responses to his
Interrogatories will be denied.
C. Attorneys’ Fees and Costs
Because the relief granted as a result of Plaintiff’s motion is limited, particularly in light
of the broad scope of his original motion to compel, this Court declines to apportion attorneys’
fees and costs for this motion. Fed. R. Civ. P. 37(a)(5). The circumstances make an award of
expenses unjust.

Dated: July 17, 2012

/s/
Stephanie A. Gallagher
United States Magistrate Judge
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