Pulte Homes, Incorporated v. American Guarantee and Liability Insurance Company

Filing 166

ORDER granting in part and denying in part 90 Motion for Sanctions; denying 94 Motion to Compel; denying 103 Motion to Strike - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PULTE HOMES, INC.,
Plaintiff/Counter-Defendant,

CIVIL ACTION NO. 09-CV-11616

vs.

DISTRICT JUDGE MARIANNE O. BATTANI

AMERICAN GUARANTEE
AND LIABILITY INSURANCE
COMPANY,

MAGISTRATE JUDGE MONA K. MAJZOUB

Defendant/Counter-Plaintiff.
___________________________/
ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR SANCTIONS (DOCKET
NO. 90), DENYING DEFENDANT’S MOTION TO COMPEL COMPLIANCE WITH
COURT ORDER (DOCKET NO. 94), AND DENYING PLAINTIFF’S MOTION TO
STRIKE (DOCKET NO. 103)
This case comes before the Court on three motions. The first motion is Plaintiff’s Motion
for Sanctions Against Defendant for Failing to Comply with a Court Order. (Docket no. 90).
Defendant filed a response. (Docket no. 95). Plaintiff filed a reply. (Docket no. 102). Defendant
also filed an objection to exhibits 5 and 9 of Plaintiff’s Motion for Sanctions, and Plaintiff filed a
response to that objection. (Docket nos. 96, 107).
The second motion is Defendant’s Motion to Compel Plaintiff’s Compliance with a Court
Order. (Docket no. 94). Plaintiff filed a response. (Docket no. 109). Defendant filed a reply.
(Docket no. 123). The parties’ filed a Joint Statement of Resolved and Unresolved Issues on May
6, 2011, stating that all issues raised in Defendant’s Motion to Compel remain unresolved. (Docket
no. 126).
The third motion is Plaintiff’s Motion to Strike Defendant’s Motion to Compel Plaintiff’s

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Compliance with a Court Order. (Docket no. 103). Defendant filed a response. (Docket no. 113).
Plaintiff filed a reply. (Docket no. 124). The motions have been referred to the undersigned for
decision pursuant to 28 U.S.C. § 636(b)(1)(A). (Docket nos. 92, 97, 105). The Court heard oral
argument on the motions on August 23, 2011. The motions are now ready for ruling.
The parties exchanged their first sets of discovery requests in April 2010, and served written
responses, objections, and supplemental answers to those requests. Subsequently, the parties filed
separate Motions to Compel Discovery, which were scheduled and heard at oral argument on
December 20, 2010. (Docket nos. 53, 59). In January 2011 the Court ordered Defendant to amend
its response to Interrogatory No. 13 to answer in full based on the information Defendant now has
available, and produce full responses and all responsive documents to Requests for Production nos.
6, 9 (limited to the period from May 1, 1997 through 2001), and 27 (limited to the period from
September 1, 2006 through the present). (Docket no. 73). In a separate Order the Court directed
Plaintiff to serve an amended response to Defendant’s Interrogatory no. 6. (Docket no. 74).
In the instant Motion for Sanctions (docket no. 90), Plaintiff argues that Defendant violated
the January 2011 Order by providing a non-responsive answer to Interrogatory no. 13 and by
redacting large portions of the documents it produced in response to Requests for Production nos.
6, 9, and 27. In Defendant’s Motion to Compel, Defendant avers that Plaintiff violated the January
2011 Order by providing a non-responsive supplemental response to Interrogatory no. 6. Defendant
also contends that it cannot fully respond to Plaintiff’s Interrogatory no. 13 until Plaintiff responds
to Defendant’s Interrogatory no. 6.
For the reasons set forth on the record at the hearing on these motions, Defendant’s Motion
to Compel Plaintiff’s Compliance with a Court Order (docket no. 94) is denied. The Court finds that

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Plaintiff’s supplemental response to Interrogatory no. 6 complies with the Court’s January 2011
Order entered at docket no. 74. Plaintiff’s Motion to Strike Defendant’s Motion to Compel (docket
no. 103) is also denied.
With respect to Plaintiff’s Motion for Sanctions (docket no. 90), the Court finds that
Defendant failed to comply with the January 2011 Order by redacting documents it was ordered to
produce in response to Requests for Production nos. 6, 9, and 27. Furthermore, despite the fact that
Defendant has had since December 2010 to review Plaintiff’s latest document production, Defendant
still has not provided Plaintiff with an adequate supplemental response to Interrogatory no. 13.
As sanctions for Defendant’s noncompliance with the Court’s Order, Plaintiff moves the
Court to strike Defendant’s sixth affirmative defense, third and fourth counterclaims, and bar
Defendant from contesting Plaintiff’s allocation of losses. Plaintiff also requests an Order directing
Defendant to produce unredacted copies of all documents Defendant redacted in responding to the
January 2011 Order. Finally, Plaintiff seeks an award of costs and expenses associated with filing
the Motion for Sanctions.
The Court will order Defendant to produce the unredacted documents it produced in response
to Requests for Production nos. 6, 9, and 27, and will grant Plaintiff’s request for costs and
reasonable attorney fees. Furthermore, Plaintiff will be ordered to provide a full and complete
supplemental response to Interrogatory no. 13. The Court will deny Plaintiff’s request to strike
Defendant’s sixth affirmative defense, third and fourth counterclaims, and to bar Defendant from
contesting Plaintiff’s allocation of losses.
IT IS THEREFORE ORDERED that Defendant’s Motion to Compel Plaintiff’s
Compliance with a Court Order (docket no. 94) is DENIED.

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IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike Defendant’s Motion to
Compel (docket no. 103) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Sanctions (docket no. 90) is
GRANTED IN PART. On or before September 9, 2011 Defendant must produce unredacted copies
of all documents it redacted in response to Requests for Production Nos. 6, 9 (limited to the period
from May 1, 1997 through 2001), and 27 (limited to the period from September 1, 2006 through the
present) as directed in the January 2011 Order at docket number 73.
IT IS FURTHER ORDERED that on or before September 19, 2011 Defendant must serve
a full and complete supplemental response to Plaintiff’s Interrogatory no. 13.
IT IS FURTHER ORDERED that on or before September 9, 2011 Plaintiff must submit
a bill of costs detailing the reasonable expenses incurred in filing Plaintiff’s Motion for Sanctions.
Defendant may respond to Plaintiff’s bill of costs on or before September 14, 2011.
NOTICE TO THE PARTIES
Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date
of this Order within which to file any written appeal to the District Judge as may be permissible
under 28 U.S.C. 636(b)(1).
Dated: August 29, 2011

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE
PROOF OF SERVICE

I hereby certify that a copy of this Order was served upon Counsel of Record on this date.

Dated: August 29, 2011

s/ Lisa C. Bartlett
Case Manager

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