Osborne et al v. Billings Clinic et al
Filing
28
ORDER denying 16 Motion to Compel. Signed by Judge Susan P. Watters on 12/1/2014. (EMH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
FILED
DEC - I 2014
Clerk, U.S. District Court
District Of Montana
Billings
DALE OSBORNE, as Personal
Representative of the Estate of Sarah
Osborne,
CV 14-126-BLG-SPW
OPINION and ORDER
Plaintiff,
vs.
BILLINGS CLINIC, and UNITED
STATES OF AMERICA,
Defendants.
BILLINGS CLINIC,
Cross-Claimant,
Vs.
UNITED STATES OF AMERICA,
Cross-Defendant.
Before this Court is Plaintiff Dale Osborne's motion to compel discovery,
(Doc. 16), wherein he requests this Court compel Defendant Billings Clinic to
answer prior discovery requests, order judgment on liability, deem Request for
Admission No. 3 admitted, all documents compelled admissible at trial and award
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attorneys' fees and costs. Defendant Billings Clinic argues that Osborne's motion
is premature. For the reasons set forth below, this Court denies Osborne's motion
to compel in its entirety.
I. Background
In July 2012, Sarah Osborne died after she had been admitted to Billings
Clinic. (Doc. 9 at 2-4). Dale Osborne ("Osborne"), as personal representative of
Sarah's estate, brought this action against Billings Clinic in Montana State District
Court ("State Court"). (Doc. 9). Osborne served his first discovery requests on the
Billings Clinic on February 4, 2014. (Doc. 17 at 8). Billings Clinic moved for a
protective order seeking to prevent the disclosure of internal policies on March 14,
2014. (Doc. 8-1 at 11 ). The State Court granted this request. (Doc. 17 at 4).
After conducting a hearing on the motion to compel in July, the State Court failed
to rule on the motion. (Id. at 10). Approximately a week later, Osborne moved to
compel Billings Clinic's discovery responses. (Doc 8-1). Counsel continued to
confer over the discovery requests, but Billings Clinic did not provide any
responses.
On August 7, 2014, Billings Clinic filed a Third-Party Complaint against
Riverstone Health Clinic and its doctors ("Riverstone") who participated in Sarah
Osborne's care. (Doc. 10). On August 18, 2014, Osborne served his second
discovery requests on the Billings Clinic. (Doc. 17-9). On September 16, 2014,
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Riverstone removed the case to this Court. (Doc. 1). The United States was
substituted for Riverstone and its associated doctors, so Osborne amended his
complaint to include a claim against the United States and dismissed individual
plaintiffs Kelly and Dale Osborne. (Doc. 19).
Osborne has now essentially renewed his motion to compel discovery that he
originally brought in State Court. In response, Billings Clinic argues that the
motion is premature.
II. Analysis
The issue is whether Billings Clinic must answer discovery requests served
in state court prior to the removal to federal court. Generally, "[a]fter removal, the
federal court takes the case up where the State court left it off." Granny Goose
Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 ofAlameda
Cnty~,
415 U.S. 423, 436 (1974) (internal citation omitted). "All injunctions,
orders, and other proceedings" before the state court remain binding in the federal
court until they are dissolved or modified. 28 U.S.C. § 1450. Pursuant to Local
Rule 3.3(a), all pending motions before the state court are automatically terminated
upon removal but may be refiled in this Court. After removal, the Federal Rules of
Civil Procedure apply to all subsequent proceedings. Fed. R. Civ. P. 8l(c).
Typically, in federal court a party cannot seek discovery until the Rule 26(£)
3
conference, unless the parties stipulate to commencing discovery or the court
allows discovery. Fed. R. Civ. P. 26(d)(l).
This Court could not find any Ninth Circuit decisions on point. However,
the "vast majority of courts" to have addressed this issue concluded that "requests
served in a state case need not be answered once the case is removed to federal
court, if the deadline to answer those requests did not lapse before removal."
Steen v. Garrett, No. 2:12-CV-1662-DCN, 2013 WL 1826451, at *2 (D.S.C. Apr.
30, 2013). Discovery requests served in state court are not held in abeyance
pending the Rule 26(£) conference. Riley v. Walgreen Co., 233 F.R.D. 496, 499
(S.D. Tex. 2005). Rather, the discovery requests are "null and ineffective" after
removal to federal court. Steen at *3.
Faced with similar facts, the United States District Court for the District of
Eastern Washington concluded that discovery requests served while the case was
in state court are no longer viable after removal. Sterling Sav. Bank v. Fed. Ins.
Co., No. CV-12-0368-LRS, 2012 WL 3143909 (E.D. Wash. Aug. 1, 2012). In
Sterling Sav. Bank, the plaintiff brought suit in state court and served discovery
requests upon the defendant. Id. at *1. Before the time for responding to the
discovery requests had run, the defendant removed the case to federal court. Id.
About a month after removal, the defendant moved for a protective order related to
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the state discovery requests. Id. The plaintiff filed a competing Motion to
Compel. Id.
The Court held that the plaintiffs discovery requests filed in state court were
no longer binding in federal court. Id. at *2. The discovery requests were not
"proceedings" under 28 U.S.C. § 1450, and therefore they were "nullified" upon
removal. Id. Therefore, the Court denied both motions as moot and ordered the
parties to proceed with a Rule 26(£) conference and submit a discovery plan that
would be binding going forward. Id. at *3.
The same result is appropriate here. The Billings Clinic responded to the
first discovery requests in State Court. Based on perceived inadequacies in the
responses, Osborne filed a Motion to Compel in State Court. See Doc. 8-2 at 1-19.
Osborne's second discovery requests were served on August 18, 2014. Before
Billings Clinic had to respond, see Mont. R. Civ. P. 34(b)(2)(A), Riverstone
removed the case. Like in Sterling Sav. Bank, the discovery requests were
nullified upon removal.
The Federal Rules of Civil Procedure govern further proceedings. This
Court will not determine whether Billings Clinic's responses to the first discovery
requests complied with the Montana Rules of Civil Procedure. Further, Fed. R.
Civ. P. 26(d) relieves the Billings Clinic of the duty to respond to the second
discovery requests. See Riley, 233 F.R.D. at 499 (Rule 26(d)'s purpose to promote
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efficient discovery. "Allowing uncompleted state court discovery to remain 'live'
after removal would not serve, and might well undermine, this purpose.").
Ill. Conclusion
For reasons state above, Osborne's Motion to Compel (Doc. 16) is DENIED.
DATED this
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sDSAN P. WATTERS
United States District Judge
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