Theisen et al v. Stoddard County et al

Filing 132

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that defendants motion to compel [#121] is granted in part (see order)Plaintiffs must produce all discovery ordered here no later than August 5, 2015. The motion is denied in all otherrespects. IT IS FURTHER ORDERED that plaintiffs Motion for Leave to file Sur-Reply [#130] is granted to the extent that the proposed Sur-Reply attached to the motion is deemed filed. IT IS FURTHER ORDERED that plaintiffs Motion for Continuance of deadlines [# 124] is grant ed in part, and an amended Case Management Order is entered separately. IT IS FURTHER ORDERED that the Order Referring Case to Alternative Dispute Resolution [# 115] is VACATED. IT IS FURTHER ORDERED that, pursuant to Rule 4(m), Fed. R. Civ. P., plai ntiffs shall show cause in writing and no later than July 30, 2015, why their claims against all John and Jane Doe defendants should not be dismissed withoutprejudice for lack of timely service( Show Cause Response due by 7/30/2015.). Signed by District Judge Catherine D. Perry on 7/17/15. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
MATTHEW THEISEN, et al.,
Plaintiffs,
vs.
STODDARD COUNTY, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 1:13CV32 CDP

MEMORANDUM AND ORDER
The Court held a telephone hearing with counsel on July 15, 2015, to discuss
defendants’ motion to compel and plaintiffs’ request to again extend the schedule
in this case. After the hearing, plaintiffs’ counsel filed a motion for leave to file a
sur-reply, which I will grant.1 Some of the matters set out in the sur-reply,
however, contradict some of the things plaintiffs’ counsel stated on the telephone.2
To the extent that plaintiffs may be back-tracking on what they agreed to at the
hearing, I will not allow that. I hope this order helps clarify any confusion
plaintiffs’ counsel may have about the Federal Rules of Civil Procedure, but

Plaintiffs’ motion for leave attaches their proposed sur-reply, but it also asks for an additional
seven days to file a sur-reply. I do not know if this is a mistake or if they really want to file
something additional in seven days. In any event, I am granting leave to file the proposed surreply that was attached; I am not granting leave to file any additional response to the motion to
compel.
2
Because of a bad telephone connection, one of plaintiffs’ lawyers was not able to fully
participate.
1

counsel are again reminded that they are obligated to follow those rules and the
Local Rules of this Court.
Motion to Compel
Plaintiffs must supplement their answers to interrogatories 8 and 11. At the
hearing plaintiffs’ counsel indicated they understood this and would do so, but the
sur-reply the filed after the hearing says they have already answered those
questions to the best of their ability.
Interrogatory 8 asks for the damages plaintiffs seek in this lawsuit. They
have provided, in response to interrogatory 14, the amount of lost wages they
claim, but they have not provided any quantification of any other damages. They
say they do expect to ask the jury for additional damages at trial, and so they must
supplement their answer to this interrogatory. This information was also required
by Rule 26(a)(1)(A)(iii), Fed. R. Civ. P., and the deadline for providing those
disclosures passed last year.
Interrogatories 10 and 11 seek specific information about what each of the
defendants is alleged to have done to violate the plaintiffs’ constitutional rights.
Plaintiffs’ Corrected Second Amended Complaint names Stoddard County and six
of its employees as defendants3 in seventeen counts. Although there is a section

3

It also names unspecified John and Jane Does, but because those defendants have not been
identified and they have not been served within the 120 days allowed by Rule 4(m), plaintiffs
will be ordered to show cause why those defendants should not be dismissed without prejudice.

-2-

entitled “Background” that provides factual detail, each count purports to be
brought against all of the defendants. Eight of the counts say they are brought
under 42 U.S.C. § 1983, and the others are Missouri common-law claims.
Interrogatories 10 and 11 are specifically directed to the § 1983 claims that
defendants violated plaintiffs’ constitutional rights. I will not require plaintiffs to
supplement their answer as to Stoddard County in Interrogatory 10. I will,
however, require them to provide some supplementation to the answer for
Interrogatory 11. The Corrected Second Amended Complaint does not allege that
defendant Mathis did anything to plaintiffs, and the answer they previously
provided to Interrogatory 11 also did not say anything about this defendant, so it is
entirely reasonable to require them to answer Interrogatory 11 fully as to defendant
Mathis. Plaintiffs have alleged in the complaint specific actions they say
defendants Gully, Hefner, Horton, Caldwell and Haynes took that appear to
support the claims of Counts I, II, III, IV, V, and VI, and so those allegations,
taken together with the answer to Interrogatory 11 previously provided, are
sufficient as to those counts against those defendants. Counts XIV and XV,
however, assert constitutional violations, yet there is no information about
anything these defendants did that could constitute the violations alleged in those
counts. Plaintiffs must therefore supplement their answers to interrogatories as to

-3-

defendants Gully, Hefner, Horton, Caldwell and Haynes with regard to the claims
of constitutional violations set out in Counts XIV and XV.
In the sur-reply filed after the hearing plaintiffs’ counsel stated that they had
produced to the defense whatever documents they have in their possession or the
possession of their counsel. Yet when I questioned plaintiffs’ counsel during the
hearing about whether they really only had three pieces of paper (which is what
defendants say was produced), they indicated that they had withheld documents
that were privileged, and that they also had withheld documents that were
otherwise available to the defendants – such as the state court orders or findings
and evaluations provided by court-appointed examiners. They indicated that they
were refusing to provide documents that they believed defendants could obtain
from other sources. As I explained in the hearing, this is a violation of the rules,
and plaintiffs must turn over all non-privileged documents relevant to their claims
that are in the possession of them or their counsel. They were required to do so
last year as part of their Rule 26(a)(a)(A) disclosures, and they are required to do
so in response to the documents requests. If privileged documents are being
withheld, plaintiffs must provide the privilege log required by Rule 26(b)(5)(A),
Fed. R. Civ. P.
Document requests 15, 16, 17, 26 and 27 ask plaintiffs to execute
authorizations and releases so defense counsel may seek to obtain third-party
-4-

documents themselves. Plaintiffs have refused to provide these authorizations
without an order requiring them to do so. They claim that they cannot sign the
documents because a Missouri court has determined that they are incompetent.
Their counsel have repeatedly stated, however, that they do not believe plaintiffs
are incompetent. Plaintiffs’ argument for why they were able to answer
interrogatories under oath but cannot sign releases is without merit. I will order
them to provide the releases requested.
Amendment to Case Management Order
Plaintiffs filed a motion for a “Continuance of Plaintiffs’ Request for
Physical and/or Mental Examination Deadlines.” As discussed at the hearing, the
deadline for requesting physical or mental examinations of parties under Rule 35
does not apply to a plaintiff’s desire to have himself examined. Rule 35 is a
discovery rule, and applies when one party wants to have the opposing party
examined. I am therefore interpreting plaintiffs’ motion as a request for additional
time to provide the reports of their medical or psychological expert witnesses. As
discussed at the hearing, I will grant the request, but it will require moving many
other Case Management deadlines, as plaintiffs’ delay in obtaining an expert
means that defendants cannot move forward with their own experts. Additionally,
because of the difficulties encountered in prosecuting this case, I no longer believe
that a referral to Alternative Dispute Resolution is appropriate, so I will vacate the
-5-

referral to ADR. If the parties wish to mediate on their own, of course, they are
free to do so without an order from me. If at some point they believe an Order
referring the case to mediation would be helpful, they may file a motion for the
same.
Accordingly,
IT IS HEREBY ORDERED that defendants’ motion to compel [#122] is
granted to the following extent: Plaintiffs must supplement their answers to
interrogatory 8; plaintiffs must supplement their answers to interrogatory 11 in its
entirety as to defendant Mathis; plaintiffs must supplement their answers to
interrogatory 11(a) as to defendants Gully, Hefner, Horton, Caldwell and Haynes
with regard to the claims of constitutional violations set out in Counts XIV and
XV; plaintiffs must produce all non-privileged documents in their possession or the
possession of their counsel that support their claims as required by Rule
26(a)(1)(A)(ii), Fed. R. Civ. P. and Local Rule 26-3.01(A); plaintiffs must produce
all non-privileged documents in their possession or the possession of their counsel
that are responsive to document requests 9, 14, 21, 25, and 28; plaintiffs must
provide all authorizations requested by document requests 15, 16, 17, 26 and 27; if
any documents are withheld as privileged plaintiffs must provide the privilege log
required by Rule 26(b)(5)(A), Fed. R. Civ. P. Plaintiffs must produce all discovery

-6-

ordered here no later than August 5, 2015. The motion is denied in all other
respects.
IT IS FURTHER ORDERED that plaintiffs’ Motion for Leave to file SurReply [#130] is granted to the extent that the proposed Sur-Reply attached to the
motion is deemed filed.
IT IS FURTHER ORDERED that plaintiffs’ Motion for Continuance of
deadlines [# 124] is granted in part, and an amended Case Management Order is
entered separately.
IT IS FURTHER ORDERED that the Order Referring Case to Alternative
Dispute Resolution [# 115] is VACATED.
IT IS FURTHER ORDERED that, pursuant to Rule 4(m), Fed. R. Civ. P.,
plaintiffs shall show cause in writing and no later than July 30, 2015, why their
claims against all John and Jane Doe defendants should not be dismissed without
prejudice for lack of timely service

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 17th day of July, 2015.

-7-