Gusakovs v. Johnson & Johnson et al
Magistrate Judge M. Page Kelley: ORDER entered. MEMORANDUM AND ORDER: For the above reasons, plaintiff's motion to compel answers to requests for admissions is DENIED. (Vieira, Leonardo) (Main Document 134 replaced on 11/13/2023) (Vieira, Leonardo). Modified on 11/13/2023 to fix a typo (Vieira, Leonardo).
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 1:17-11502-DJC
JOHNSON & JOHNSON and
DEPUY SYNTHES SALES, INC.,
MEMORANDUM AND ORDER ON PLAINTIFF ALEKSEJ GUSAKOVS’S MOTION
TO COMPEL ANSWERS TO REQUESTS FOR ADMISSION (#117).
This case involves allegations that defendants Johnson & Johnson (“J&J”) and DePuy
Synthes Sales, Inc. (“DSS”) wrongfully terminated plaintiff Alexsej Gusakovs in retaliation for
blowing the whistle on defendants’ alleged violations of the False Claims Act, 31 U.S.C. § 3729,
et seq. (“FCA”) and the Massachusetts False Claims Act, Mass. Gen. Laws. Ch. 12 §§ 5A, et seq.
(“MFCA”). (#13 (Am. Compl., hereinafter “FAC”)); (#107 (2d Am. Compl., hereinafter “SAC”).)
Plaintiff moves the court to compel defendants to respond to plaintiff’s requests for admission
(“RFAs”) that seek to confirm defendants mailed to plaintiff certain letters in early 2018 informing
him that he had been terminated, see RFA Nos. 2-5, as well as confirm that neither defendant sent
to plaintiff W-2 forms for years 2019-2022 before producing them in connection with this litigation
in February 2023, see RFA No. 8. (#117 at 1-2); see #119 at Ex. 1. 1 Plaintiff seeks his fees and
expenses in connection with this motion under Rules 26(a)(6) and 37(a)(5) of the Federal Rules of
Civil Procedure. Id. at 1.
After plaintiff filed his motion, defendants supplemented their responses to RFA Nos. 2-5
and 8 and opposed plaintiff’s motion. (#125.) For the following reasons plaintiff’s motion is
Plaintiff originally brought claims against J&J, DSS, and DePuy Synthes, Inc., for
violations of the FCA and MFCA in August 2017. (#2 (Compl.).) At the time he filed the case,
plaintiff was on short term disability leave from his position as a “clinical specialist” for, he claims,
J&J and DSS. (#118 at 3.) Around six months after he filed suit, plaintiff purportedly received a
letter from the “Johnson & Johnson Employee Service Center” indicating that he had been
terminated. Id. at 3-4; see RFA Ex. 2. Plaintiff then amended his complaint to add claims for
wrongful termination related to his whistleblowing. #114 at 4; see #13 (FAC). Following the
amendment, plaintiff and his wife allegedly received several other letters from “Johnson &
Johnson – Health, Benefits & Compensation” regarding the status of his COBRA and pension
benefits, again indicating that he had been terminated. #117 at 4-5; see RFA Exs. 3-5. Two of
these letters stated that he had been terminated effective April 12, 2018. See RFA Exs. 3 & 4.
In support of his motion, plaintiff submitted a declaration of counsel Charles F. Kester, see #119,
to which is attached plaintiff’s RFAs, id. at Ex. 1, and defendants’ initial responses, id. at Ex. 2.
Attached to plaintiff’s RFAs as Exhibits 2-5 and 8 are the letters and W-2 forms at issue here. See
id. at Ex. 1, pdf pgs. 14-41, 46-50. The court will refer to the exhibits attached to the declaration
of Attorney Kestor, i.e., plaintiff’s RFAs and defendants’ initial responses, as “Ex.,” and the
exhibits attached to plaintiff’s RFAs, i.e., the letters and W-2 forms, as “RFA Ex.”
In September 2022, after five years of investigation, the United States and the
Commonwealth of Massachusetts (together, the “government”) elected to intervene in part as to
plaintiff’s FCA and MFCA claims against DSS and DePuy Synthes, Inc. (##62, 64.) Shortly
thereafter, the parties settled the FCA and MFCA claims, #72, and the court dismissed them on
January 27, 2023, #74. The court partially unsealed the case, ##70, 71, and allowed plaintiff’s
personal claims, including his wrongful termination and retaliation claims against J&J and DSS,
to move forward. (#74.)
In furtherance of his claims, plaintiff requested a copy of his personnel file, and in February
2023, defendants produced it. (#117 at 6-7.) The file included W-2 forms for the tax years 2019
through 2022 that had purportedly been issued to plaintiff by “J&J Services, Inc., Agent for DePuy
Synthes Sales, Inc.”; but plaintiff claims he never received the forms before February 2023. Id.
On March 3, 2023, plaintiff requested leave to file a second amended complaint to include,
inter alia, allegations related to the termination-related letters described above, see Ex. 2-5. (#91.)
On March 24, defendants moved to dismiss both plaintiff’s FAC, #96, and SAC, #99, and opposed
plaintiff’s motion to amend, #98. On June 16, 2023, the court allowed plaintiff’s motion to amend,
but dismissed some of plaintiff’s claims in response to defendants’ motion to dismiss the SAC;
plaintiff’s retaliation claims under the FCA and MFCA, and his claims for wrongful termination
in violation of public policy under Massachusetts law, survived. (#105.) Plaintiff filed his SAC
in accordance with the court’s order on June 22, 2023. (#107 (SAC).) The court held a Rule 16(b)
scheduling conference on July 24, 2023, #111, and set the deadline for fact discovery on May 10,
DSS now claims that it did not terminate plaintiff. See #108 (DSS Ans. To SAC) ¶ 5
(“[DSS] admits that Plaintiff’s employment began with [DSS] in May 2015. [DSS] denies that
Plaintiff was terminated.”); id. at 17 (Second Affirmative Defense: “Plaintiff was not terminated
or otherwise retaliated against for any protected conduct.”); id. (Third Affirmative Defense:
“While not conceding that Plaintiff was terminated . . . .”).
DSS claims that plaintiff’s
“employment with [DSS] terminated before June 1, 2018, when plaintiff’s long-term disability
claim was denied by third-party Prudential and the Company’s contemporaneous records reflect
that Plaintiff did not respond or make contact regarding a return to work or a request for an
accommodation and admits that Plaintiff’s termination was reversed prior to June 1, 2018.” Ex. 2
at 66 (defendants’ response to RFA No. 9). DSS further claims that plaintiff “is a current employee
of [DSS] who is out on unpaid leave.” Id. at 67 (defendants’ response to RFA No. 10).
J&J claims that it never employed plaintiff, and thus did not terminate him, either. See
#109 (J&J Ans. to SAC) ¶ 5 (“[J&J] denies that it employed Plaintiff and denies that it terminated
Plaintiff.”); Ex. 2 at 66 (defendants’ response to RFA No. 9).
Plaintiff’s Motion to Compel (#117).
Plaintiff asserts that defendants’ positions bring his employment status and his termination
into the limelight of this case. He argues that the above-mentioned letters that reference his
termination are directly relevant to these issues, and therefore their authentication is vital.
On August 9, 2023, plaintiff propounded his first set of RFAs on defendants, in which he
requested defendants either admit or deny that they sent each respective letter to plaintiff, Ex. 1 at
RFA Nos. 2-5, and either admit or deny that they did not send him W-2s for years 2019-2022, id.
at RFA No. 8. On September 8, 2022, defendants responded. See Ex. 2. Their response included
pages of boilerplate objections, as well as specific objections to each of plaintiff’s RFAs. Id. In
addition, in response to RFA Nos. 2-5 & 8, defendants stated that they “have made a reasonable
inquiry, and the information currently known or readily obtainable is insufficient to permit the
Defendants to admit or deny Request No. [2-5, 8]. The Defendants’ inquiry will continue, and the
Defendants will supplement this response as appropriate.” Id.
Following defendants’ initial responses, the parties met and conferred on September 14,
2023, via a telephone call that lasted around 15 minutes. (#118 at 8); (#125 at 3.) Plaintiff reports
that nothing was resolved and that defendants did not provide any detail on their supposed
investigation, nor any details on when or whether they would supplement their RFA responses;
defendants claim that they made it clear in their responses that they intended to supplement
following a reasonable inquiry, which was ongoing. Id.
Around two weeks later, before the parties had entered into any agreements regarding a
protective order or an ESI protocol, 2 plaintiff filed this motion, seeking to compel defendants to
respond to RFA Nos. 2-5 and 8, and to be awarded expenses for bringing the motion under Fed.
R. Civ. P. 26(a)(6) and 37(a)(5). (#117.) Plaintiff argues that, since J&J’s letterhead is on the
letters, the correspondence is effectively self-authenticating, and defendants are clearly playing
games by attempting to evade responsibility for sending them. (#118 at 8-16.) He further asserts
that defendants have been on notice of the correspondence since at least March 2023, when
plaintiff filed his second motion to amend the complaint, and therefore their request for additional
time to conduct an investigation is disingenuous. Id.
On October 9, defendants served their first supplemental responses to plaintiff’s RFAs, see
#125-1 at 2-21. In response to RFA No. 2, which requested defendants admit or deny that RFA
Ex. 2 was a “true and correct copy of a document that You sent to Plaintiff,” defendants responded
Plaintiff filed the parties’ proposed stipulated protective order and proposed stipulated ESI
protocol on October 2, 2023. (##121, 122.) The court allowed both on October 16. (##126, 127.)
Subject to and without waiving their objections, the Defendants have made a
reasonable inquiry, and the information currently known or readily obtainable is
insufficient to permit the Defendants to admit or deny Request No. 2. If this
document was sent to Plaintiff by either Defendant, it would have been sent by the
Defendants’ Payroll Tax department. The Defendants’ Payroll Tax department has
searched its records related to Plaintiff’s tax year 2017 W-2C and has been unable
to locate this document.
Id. at 11. In response to RFA Nos. 3-5, which requested that defendants admit that RFA Exs. 3-5
were each respectively a “true and correct copy of a document that You sent to [plaintiff/plaintiff’s
wife],” defendants admitted that the relevant document was “a true and correct copy of a document
sent to [plaintiff/plaintiff’s wife] by Alight Solutions,” and otherwise denied the RFA. Id. at 1517. In response to RFA No. 8, which requested that defendants “[a]dmit that prior to February 21,
2023, [they] did not send to Plaintiff, or otherwise cause him to be provided with any W-2 forms
for the tax years 2019 through 2022,” defendants responded in relevant part that “[DSS] denies
request No. 8,” and “[J&J] admits Request No. 8 and denies that it was responsible for providing
Plaintiff with any W-2 forms for the tax years 2019 through 2022, as it was not his employer and
did not provide him with any taxable income in those years.” Id. at 19-20.
On October 13, defendants filed their opposition to plaintiff’s motion, #125. They argue
that they are entitled to preserve their objections; their initial responses were served in the time
permitted by Fed. R. Civ. P. 36(a)(3) (thirty days); those answers were sufficient under Fed. R.
Civ. P. 36(a)(4), especially considering an investigation, which involved reaching out to third
parties, was ongoing; and they sufficiently supplemented their responses within a reasonable
amount of time, as permitted by the Rules. Id. at 3-6. Defendants further opposed plaintiff’s
request for fees, as well as Attorney Kestor’s calculation of his fees. Id. at 6-11.
Fed. R. Civ. P. 36 allows a party to “serve on any party a written request to admit, for
purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1)
relating to . . . (B) the genuineness of any described documents.” Bonomo v. Factory Ins. Co., No.
1:21-cv-11750-IT, 2023 WL 3934696, at *4 (D. Mass. June 9, 2023) (quoting Fed. R. Civ. P.
36(a)(1)). The Rule is “not a discovery device”; its purpose is to “reduce the costs of litigation by
eliminating the necessity of proving facts that are not in substantial dispute, to narrow the scope
of disputed issues, and to facilitate the presentation of cases to the trier of fact.” In re New England
Compounding Pharm., Inc. v. Prod. Liability Litig., MDL No. 13-2419-RWZ, 2015 WL
13715291, at *3 (D. Mass. Sept. 8, 2015) (quoting T. Rowe Price Small-Cap Fund, Inc. v.
Oppenheimer & Co., Inc., 174 F.R.D. 38, 42 (S.D.N.Y. 1997) (punctuation omitted)).
“A matter is admitted unless, within 30 days after being served, the party to whom the
request is directed serves on the requesting party a written answer or objection addressed to the
matter and signed by the party or its attorney.” Bonomo, 2023 WL 3934696, at *4 (quoting Fed.
R. Civ. P. 36(a)(3)) (deeming RFAs admitted where plaintiff failed to respond within the thirty
days permitted by the rules, did not request an extension, and did not justify their delay); see Foss
v. Marvic, Inc., 994 F.3d 57, 63 (1st Cir. 2021). The Rule further provides that:
If a matter is not admitted, the answer must specifically deny it or state in detail
why the answering party cannot truthfully admit or deny it. A denial must fairly
respond to the substance of the matter; and when good faith requires that a party
qualify an answer or deny only a part of a matter, the answer must specify that part
admitted and qualify or deny the rest. The answering party may assert lack of
knowledge or information as a reason for failing to admit or deny only if the party
states that it has made reasonable inquiry and that the information it knows or can
readily obtain is insufficient to enable it to admit or deny.
Fed. R. Civ. P. 36(a)(4).
“What constitutes ‘reasonable inquiry’ and what material is ‘readily obtainable’ is a
relative matter that depends upon the facts of each case.” In re New England Compounding
Pharm., 2015 WL 13715291, at *3 (quoting T. Row Price Small-Cap Fund, 174 F.R.D. at 43)
(punctuation omitted); see Bouchard v. U.S., 241 F.R.D. 72, 76 (D. Me. 2007) (“The obligation to
undertake a reasonable inquiry requires the respondent to make ‘a reasonable inquiry, a reasonable
effort, to secure information that is readily obtainable from persons and documents within the
responding party’s relative control.’” (quoting Henry v. Champlain Enters., 212 F.R.D. 73, 78
(N.D.N.Y. 2003)). “To be sure, when requests to admit are served on a corporate party, Fed. R.
Civ. P. 36(a) does not expressly require them to be answered by the most knowledgeable person
available. The rule does require, however, that the respondent make ‘reasonable inquiry’ into the
subject matter of the requests.” Veranda Beach Club Ltd. Partnership v. Western Sur. Co., 936
F.2d 1364, 1374 (1st Cir. 1991). In short, “Rule 36 requires specificity, detailed explanation when
a truthful answer cannot be framed, good faith, and fairness.” U.S. v. Kenealy, 646 F.2d 699, 703
(1st Cir. 1981); see Romano v. Computershare, Inc., No. 3:17-cv-10208-MGM, 2020 WL
6907076, at *3 (D. Mass. Nov. 24, 2020) (“Allowing a party to simply track the language of Rule
36 would also encourage discovery abuse.”).
“If the Court finds that an answer does not meet the requirements of Rule 36, it ‘may order
either that the matter is admitted or that an amended answer be served.’” Beaulieu v. Orlando,
No. 15-cv-012-JD, 2018 WL 654435, at *3 (D.N.H. Jan. 29, 2018) (quoting Fed. R. Civ. P.
36(a)(6)). Fed. R. Civ. P. 36(a)(6) further allows for the award of expenses under Rule 37(a)(5),
which provides that “[i]f the motion is granted—or if the disclosure or requested discovery is
provided after the motion was filed—the court must, after giving an opportunity to be heard,
require the party . . . to pay the movant’s reasonable expenses incurred in making the motion,
including attorney’s fees.” Fed. R. Civ. P. 37(a)(5). The court cannot 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 other party’s nondisclosure, response, or objection was substantially
justified; or (iii) other circumstances make an award of expenses unjust.” Id.
A. Sufficiency of Defendants’ Answers.
The court finds that defendants’ supplemental responses comply with Fed. R. Civ. P. 36.
Defendants’ supplemental answer to RFA No. 2 provides a description of the bounds of their
search, and the court finds that the investigation described is reasonable—even if its conclusion,
namely that the critical record is lost, seems somewhat incredible. See In re New England
Compounding Pharm., 2015 WL 13715291, at *3 (“Generally, a reasonable inquiry is limited to
review and inquiry of those persons and documents that are within the responding party’s
control.”); see also Veranda Beach Club, 936 F.2d at 1374. Cf. Iantosca v. Benistar Admin Servs.,
Inc., No. 08-cv-11785-NMG, 2012 WL 220224, at *2 (D. Mass. Jan. 14, 2012) (“Reasonableness
cannot simply be ascertained absent a brief description of the inquiry made.”). 3
Defendants’ supplemental responses to RFA Nos. 3-5 are also sufficient. Although
plaintiff may take issue with defendants’ answers, which deny that either defendant sent the
respective letters, the court finds that defendants responded fully to the RFA propounded by
providing the sender’s identity. Finally, defendants’ response to RFA No. 8 is sufficient as both
If defendants continue to assert insufficient information to either admit or deny, and plaintiff later
proves “the document to be genuine or the matter true,” plaintiff may move that defendants pay
the reasonable expenses, including attorney’s fees, incurred in making that proof. Fed. R. Civ. P.
37(c)(2); see S.E.C. v. Happ, 295 F. Supp. 2d 189, 192-93 (D. Mass. 2003) (awarding costs under
Fed. R. Civ. P. 37(c)(2) where SEC refused to admit that it did not call defendant on June 25, 1998
from an office telephone and defendant later proved this to be true).
defendants admitted or denied the RFA, respectively. Nautilus Ins. Co. v. Operation Stand Down,
R.I., No. 09-cv-192 ML, 2009 WL 10729080, at *3 (D. R.I. Dec. 11, 2009) (“[T]he Rule now
states explicitly that ‘[a] party must not object solely on the ground that the request presents a
genuine issue for trial.’” (quoting Fed. R. Civ. P. 36(a)(5)).
Plaintiff’s motion is thus denied to the extent it seeks further responses to plaintiff’s RFAs. 4
B. Plaintiff’s Request for Expenses.
Defendants supplemented their answers to plaintiff’s RFAs after plaintiff filed this motion,
triggering a Rule 37(a)(5) fee-shifting analysis. Fed. R. Civ. P. 37(a)(5). The court finds that
exonerating circumstances are present that militate against awarding plaintiff his expenses. Id.
First, plaintiff filed this motion only two weeks after a short meet-and-confer that directly followed
service of defendants’ initial responses, which were served in compliance with the thirty-day
deadline set forth in Fed. R. Civ. P. 36(a)(3). In those initial responses, defendants clearly stated
that an investigation was ongoing. Although defendants did not state for certain when they would
supplement, the court finds plaintiff’s prompt sprint to the court did not demonstrate a good faith
effort to obtain the discovery, especially considering over seven months remained in the discovery
Second, defendants’ initial responses were justified.
They were investigating the
provenance of the records, as RFAs 2-5 required, and the investigation required reaching out to
third parties, as defendants stated in their initial responses. Contrary to plaintiff’s suggestion, the
court does not find that such admissions must be made based on letterhead alone. Such searches
thus justify the additional weeks defendants required to respond fully. See In re New England
This motion does not absolve defendants of their continuing obligations to supplement should
additional information come to light. Fed. R. Civ. P. 26(e).
Compounding Pharm., 2015 WL 13715291, at *3 (denying motion to compel RFA responses
where “[m]any of the requests would require [plaintiff] to conduct extensive discovery of third
parties before it would be in a position to admit or deny such requests”). Similarly, RFA No. 8
required defendants to confirm a negative, a task that often requires extensive investigation.
Plaintiff’s request for expenses is therefore denied.
For the above reasons, plaintiff’s motion to compel answers to requests for admissions is
/s/ M. Page Kelley
M. Page Kelley
United States Magistrate Judge
November 13, 2023
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