Potts et al v. Greenwell et al

Filing 44

ORDER granting in part and denying in part #36 Motion to Compel - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RALEIGH POTTS, II,
and LAURA LEE POTTS
Plaintiffs,

Civil Action No.: 11-CV-15187

vs.

District Judge Bernard A. Friedman
Magistrate Judge Mona K. Majzoub

ROBERT J. GREENWELL,
R&B TRUCKING, and
WALBERT TRUCKING, INC.,
Defendants.
_____________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO COMPEL [36]
This matter comes before the Court on Defendant Walbert Trucking, Inc.’s Motion to
Compel Discovery Responses from Plaintiff Raleigh Potts, II. (Docekt no. 36.) Plaintiff has not
responded.1 Defendant filed a Statement of Unresolved Issues.2 (Docket no. 40.) The motion has
been referred to the undersigned for consideration. (Docket no. 37.) The Court has reviewed the
pleadings and dispenses with oral argument pursuant to Eastern District of Michigan Local Rule

1

Plaintiff has had ample opportunity to respond to Defendant’s Motion. Defendant first
filed its Motion to Compel on August 22, 2013. (Docket no. 27.) Plaintiff failed to respond, but
on October 4, 2012, the Court struck Defendant’s Motion for failure to comply with E.D. Mich.
L.R. 7.1(a)(2)(A). Defendant again filed its Motion to Compel on October 14, 2013. (Docket
no. 30.) On November 13, 2013, the Court again struck Defendant’s Motion—this time for
failure to comply with E.D. Mich. L.R. 37.2. Defendant then filed its instant Motion. (Docket
no. 36.) Thus, pursuant to E.D. Mich. L.R. 7.1.(e)(2)(B), Plaintiff’s response was to be filed no
later than November 27, 2013. Plaintiff, however, has had notice of Defendant’s Motion for
nearly seven months.
2

The Court notes that the parties were ordered to file a Joint Statement of Resolved and
Unresolved Issues. (See docket no. 34.)

7.1(f)(2). The Court is now ready to rule pursuant to 28 U.S.C. § 636(b)(1)(A).
I.

Background
Plaintiff’s claims arise out of an automobile accident between two tractor trailers. (See

docket no. 1 at 3.) Plaintiff Raleigh Potts, II, alleges that he suffered severe injuries when Defendant
Greenwell rear-ended him on November 26, 2008. (Id.) Plaintiff Laura Lee Potts joins in her
husband’s suit and alleges a Loss of Consortium resulting from the accident. (Id. at 6.)
Defendant contends that on May 14, 1013, Walbert Trucking served Plaintiff Raliegh Potts,
II, with its “Interrogatories Directed to Plaintiff Raleigh Potts, II.” (See docket no. 36-2.) Plaintiff
failed to respond and failed to object, and on June 18, 2013, Defendants’ counsel sent Plaintiffs’
counsel a letter indicating that he had not yet received Plaintiff’s response to the interrogatories.
(Docket no. 36-3.) Defendant indicates that the parties’ attorneys spoke on October 1, 2013, but
they did not reach a resolution. (Docket no. 36 at 2.) Defendant now seeks complete responses to
its interrogatories pursuant to Fed. R. Civ. P. 37.
II.

Governing Law
The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite

broad. Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998). Parties may obtain discovery
on any matter that is not privileged and is relevant to any party’s claim or defense if it is reasonably
calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1). “Relevant
evidence” is “evidence having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be without the
evidence.” Fed.R.Evid. 401. But the scope of discovery is not unlimited. “District courts have
discretion to limit the scope of discovery where the information sought is overly broad or would
prove unduly burdensome to produce.” Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d

288, 305 (6th Cir. 2007).
Rules 33 and 34 allow a party to serve interrogatories and requests for production of
documents on an opposing party. Fed.R.Civ.P. 33, 34. A party receiving these types of discovery
requests has thirty days to respond with answers or objections. Fed.R.Civ.P. 33(b)(2), 34(b)(2)(A).
Rule 30 allows a party to conduct a deposition of any person without leave of the Court, subject to
certain exceptions. Fed.R.Civ.P. 30(a)(1). If the party receiving discovery requests under Rules 33
or 34 fails to respond properly or if the person whose deposition is sought under Rule 30 fails to
properly comply with the rule, Rule 37 provides the party who sent the discovery or noticed the
deposition the means to file a motion to compel. Fed.R.Civ.P. 37(a)(3)(B). If a court grants a Rule
37 motion to compel, then the court must award reasonable expenses and attorney’s fees to the
successful party, unless the successful party did not confer in good faith before the motion, the
opposing party’s position was substantially justified, or other circumstances would make an award
unjust. Fed.R.Civ.P. 37(A)(5)(a).
III.

Analysis
Plaintiff did not object to Defendant’s interrogatories and has not responded to its Motion.

Thus, the Court is inclined to grant Defendant’s Motion in full. Nevertheless, as Defendant’s
interrogatories state, and as its Motion reiterates, Defendant’s discovery request was made under
Fed. R. Civ. P. 33. (See docket no. 36 at 5; docket no. 36-2 at 2.) Rule 33 applies to interrogatories
and does not give a party a right to request the production of documents. See Fed. R. Civ. P. 33.
Such a request is only appropriate under Rule 34. See Fed. R. Civ. P. 34. Defendant made no such
request under Rule 34, and therefore, the Court will deny Defendant’s Motion to the extent that any
interrogatory attempts to compel production. The Court will also order Plaintiff to pay Defendant’s
reasonable expenses and attorney’s fees pursuant to Fed. R. Civ. P. 37(A)(5)(a). The Court will,

therefore, order Defendant to submit a Bill of Costs.3
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel [36] is GRANTED IN
PART and DENIED IN PART as follows:
a.

Defendant’s Motion to Compel a response to Interrogatory No. 4(d) requesting
copies of Plaintiff’s tax returns for the last five years is DENIED;

b.

Defendant’s Motion to Compel a response to Interrogatory No. 12(e) requesting
copies of Plaintiff’s medical reports or examinations for the last seven years is
DENIED;

c.

Defendant’s Motion to Compel a response to Interrogatory No. 16(c) requesting
copies of medical records related to any other lawsuits that Plaintiff may have filed
is DENIED; and

d.

Defendant’s Motion to Compel with regard to the rest of the interrogatories
contained in its May 13, 2013 Interrogatories Directed to Plaintiff Raleigh Potts, II,
is GRANTED.

Plaintiff is ordered provide a full response to Defendant’s Interrogatories without objection within
21 days of this Opinion and Order.
IT IS FURTHER ORDERED that Plaintiff must pay the reasonable expenses and
attorney’s fees incurred by Defendant as a result of bringing its instant Motion. Defendant is
ordered to submit to the Court a Bill of Costs itemizing the same within 28 days of this Opinion and
Order, at which time the Court will determine the amount of costs and fees for which Plaintiff is
liable.

3

The Court cautions Defendant not to include any costs or attorneys fees incurred as a
result of its improperly filed Motions (docket nos. 27 and 30.)

NOTICE TO THE PARTIES
Pursuant to Federal Rule of Civil Procedure 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: March 13, 2014

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: March 13, 2014

s/ Lisa C. Bartlett
Case Manager