Boaz Home Improvement & Construction Company, LLC et al v. SunTrust Bank, Inc. et al

Filing 43

ORDER denying 40 Motion to Strike. However, the court directs counsel to immediately resubmit answers under oath. Signed by Magistrate Judge Jane M. Virden on 11/5/14. (ncb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION

BOAZ HOME IMPROVEMENT &
CONSTRUCTION COMPANY, LLC,
Individually and as Co-Venturer in Brantley
Group/Boaz Home Improvement & Construction
Company, Joint Venture
VS.

PLAINTIFF

CIVIL ACTION NO. 4:11CV00090-SA-JMV

SUN TRUST BANK, INC., Et Al.

DEFENDANTS

ORDER DENYING MOTION TO STRIKE
Before the court is Plaintiff’s Motion [40] to Strike Defendant Church of the Living
God’s Responses to Plaintiff’s First Set of Jurisdictional Interrogatories. Essentially, Plaintiff
complains the Church’s responses were executed by counsel for the defendant, instead of the
defendant as required by Fed.R.Civ.P. 33(b)(1)(A), and requests that the responses be stricken.
Having duly considered the matter, the court is of the opinion the motion should be, and
it is, hereby DENIED. First, the court notes the instant motion is unaccompanied by the good
faith certificate mandated by L.U.Civ.R. 37(a). While the court appreciates the limited time
frame set for jurisdictional discovery in this case, the parties are reminded that no party has been
excused from its obligations under the Federal Rules of Civil Procedure and the Local Rules of
this court.
Second, while Plaintiff directs the court’s attention to section A of Rule 33(b)(1), it
appears section B is the applicable provision. That section provides that “if the party [to whom
the interrogatories are directed] is a public or private corporation, a partnership, an association,
or a governmental agency[,]” the interrogatories may be answered by “any officer or agent.”

According to Wright and Miller, this provision authorizes counsel for the Church (a religious
“association”) to provide the responses. See 8B Charles Alan Wright, Arthur R. Miller &
Richard L. Marcus, Federal Practice and Procedure: Civil § 2172 (3d ed. 2010) (“Because the
rule authorizes either an officer or an agent to answer, it clearly allows answers by an
attorney.”). Cf. Wilson v. Volkswagen of America, Inc., 561 F.2d 494, 508 (4th Cir. 1977)
(“[FRCP 33] expressly provides that interrogatories directed to a corporate party may be
answered ‘by any officer or agent, who shall furnish such information as is available to the
party.’ This language has been uniformly construed to authorize ‘answers by an attorney’ for the
party.”); Johns v. U.S., No. Civ. A. 96-1058, 1997 WL 732423, at *2 (E.D. La. Nov. 21, 1997)
(Assistant U.S. Attorney allowed to sign interrogatories because “[FRCP 33(a) clearly allows
any governmental agent to answer an interrogatory so long as the individual bases the response
on all the information available to the government.”). In view of this authority, it appears the
basis of the instant motion is misplaced.
However, while the court does not find the grounds for the motion well taken, the court
has observed that the answers were not properly sworn to as required by Rule 33(b)(3) and,
accordingly, directs counsel answering the same to immediately resubmit them under oath.
SO ORDERED this 5th day of November, 2014.

/s/Jane M. Virden
UNITED STATES MAGISTRATE JUDGE

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