Redmond-Nieves v. Okuma America Corporation et al

Filing 57

Magistrate Judge David H. Hennessy: ORDER entered denying 36 Motion to Compel. "For the foregoing reasons, Redmond-Nieves motion to compel (Docket #36) is DENIED AS MOOT as to Defendant Morris and DENIED as to Defendant Okuma." (Belpedio, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

MONICA REDMOND-NIEVES,
Plaintiff,
v.
OKUMA AMERICA CORP., et al.
Defendants.

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CIVIL ACTION
NO. 16-12216-TSH

ORDER
July 31, 2018
Hennessy, M.J.
By Order of Reference dated June 27, 2018, pursuant to 28 U.S.C. § 636(b)(1)(A)
(Docket #47), this matter was referred to me for a ruling on Plaintiff Monica Redmond-Nieves’
Motion to Compel (Docket #36). In her motion, Redmond-Nieves seeks to have the court enter
an order compelling Defendants Okuma American Corporation (“Okuma”) and Robert E. Morris
Company, LLC (“Morris”) to produce financial documents and financial information about
themselves so she may present to the jury a claim for punitive damages pursuant to the
Massachusetts Wrongful Death statute, Mass. Gen. Laws ch. 229, § 2. (Id.). In its opposition to
the motion, Morris indicated that a request for the discovery sought in the motion to compel had
never been properly served upon Defendants. (Docket #40 at 3). On July 18, 2018, I entered an
order directing Redmond-Nieves to demonstrate that she timely served on Defendants a request
for the discovery that she now seeks to compel. (Docket #53). Specifically, I ordered RedmondNieves to file a copy of the subject requests and the responses thereto in compliance with Local

Rule 37.1(b)(4), and alternatively, if she had failed to serve such discovery requests, to file a
declaration with the court to that effect. (Id.).
On July 20, 2018, Redmond-Nieves filed notice that she had and Morris had come to an
agreement regarding the production of the subject documents and, therefore, she was
withdrawing her motion to compel as to Morris. (Docket #54). Redmond-Nieves stated that the
motion to compel with respect to Okuma remained pending. (Id.).
On that same day, Redmond-Nieves’ attorney filed a declaration in which he stated that
no formal requests for the production of the documents at issue pursuant to Federal Rule of Civil
Procedure 34 had been made. (Docket #55). Counsel explained that it was not until after
Okuma’s deposition, which was begun on January 19, 2018 and will continue on July 31, 2018,
that it became clear that a colorable argument for punitive damages could be made against
Okuma. (Id. at ¶¶ 3, 5, 10). Counsel represented that the deadline to serve Rule 34 requests was
September 30, 2017, and, because it was past this deadline, no request was served on Okuma.
(Id. at ¶¶ 2, 10).
Pursuant to Federal Rule of Civil Procedure 37(a)(3)(B), “a party seeking discovery may
move for an order compelling an answer, designation, production, or inspection.”1 This motion
may be made where:
(i) a deponent fails to answer a question asked under Rule 30 or 31;
(ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or
31(a)(4);
(iii) a party fails to answer an interrogatory submitted under Rule 33; or
(iv) a party fails to produce documents or fails to respond that inspection will be
permitted – or fails to permit inspection – as requested under Rule 34.

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A party may also move to compel disclosure if another party fails to make a disclosure required by Federal Rule of
Civil Procedure 26(a). Fed. R. Civ. P. 37(a)(3)(A).

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Id.

Based on Redmond-Nieves’ description of the financial information she seeks, the

appropriate discovery mechanism would be a request for production pursuant to Federal Rule of
Civil Procedure 34. Rule 34 allows a party to serve on any other party a request to produce
designated documents or electronically stored information or any designated tangible things.
Fed. R. Civ. P. 34(a)(1).
Redmond-Nieves never served a Rule 34 request on Okuma for the documents at issue.
Hence, she is precluded from moving to compel those documents pursuant to Rule
37(a)(3)(B)(iv). Redmond-Nieves’ attempt to excuse her failure to comply with Rule 34 prior to
filing a motion to compel is unavailing. Parties are not at liberty to circumvent the procedural
dictates of the federal rules merely because the time to serve such requests have passed under the
operating scheduling order. Were the court to allow such behavior, it would make a nullity of
not only the federal rules but also the court ordered scheduling deadlines. The court notes that
Redmond-Nieves was capable of filing a motion to extend the deadline for service of document
requests, a procedure with which she was familiar, but failed to do so. (See Dockets #23, 29).
CONCLUSION
For the foregoing reasons, Redmond-Nieves’ motion to compel (Docket #36) is DENIED
AS MOOT as to Defendant Morris and DENIED as to Defendant Okuma.

/S/ David H. Hennessy
David H. Hennessy
UNITED STATES MAGISTRATE JUDGE

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