Usrey v. Deyott et al

Filing 28

ORDER granting 22 Motion to Compel; granting 27 Motion to Compel; denying 27 Motion for Default Judgment. On or before June 21, 2013, Defendants shall amend their discovery responses, withdraw all objections, and provide full and complete responses to Mr. Usrey's discovery requests. Signed by Magistrate Keith Strong on 6/11/2013. Mailed to Usrey. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
RICKY JOE USREY,

Cause No. CV 12-00092-H-DLC-RKS

Plaintiff,
vs.

ORDER

DENISE DEYOTT and MIKE
FERRITER,
Defendants.

Plaintiff Ricky Usrey has filed two Motions to Compel Discovery. CD 22,
27. Mr. Usrey served discovery requests upon Defendant Deyott on March 22,
2013. At the request of Defendants’ counsel, Mr. Usrey stipulated to a two-week
extension of the 30-day time period provided for a response. See Fed. R. Civ. P.
34(b)(2)(A). Mr. Usrey did not receive Defendants’ discovery responses in that
extended time period, and filed a motion to compel discovery on May 22, 2013.
CD 22. The motion sought an order requiring Defendants to produce for
inspection and copying the documents previously requested. CD. 22. The Court
issued an order requiring Defendants to respond to the first motion to compel on or
before June 5, 2013. CD 24.
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On June 6, 2013 (a day after the Court’s deadline), counsel for Defendants
filed a response to Mr. Usrey’s motion indicating that “due to the press of normal
business resulting from his other duties as staff attorney for the Department of
Corrections, the attorney for Defendants was unable to provide responses to
Defendants’ discovery requests until June 3, 2013.” CD 26, p. 2.
Counsel for Defendants has a history of dilatory actions in this case. First,
he failed to timely file the Waiver of Service requested by the Court (the waiver
was due on April 25, 2013 (CD 18) but was not filed until May 8, 2013 (CD 21)).
Secondly, counsel failed to timely file an Answer for Defendant Ferriter (the
answer was due on May 23, 2013 (CD 18) and not filed until May 24, 2013 (CD
25)). Third, counsel failed to timely respond to Mr. Usrey’s discovery requests
(responses were due on or before May 3, 2013 but were not served until June 3,
2013). Lastly, counsel disregarded the Court’s June 5, 2013 deadline for
responding to Mr. Usrey’s motion to compel (CD 24) and did not respond until
June 6, 2013. CD 26.
Mr. Usrey has now filed a “Motion and Notice to the Court and Request for
Court Enforcement of Petitioner’s Plaintiff’s Recent Motion to Compel Discovery
and Request for Default Judgment against Defendants.” CD 27. Therein, Mr.
Usrey points out that Defendants have waived their right to object to his discovery
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requests and seeks an Order requiring Defendants to fully comply with his
discovery requests. He further requests default judgment against Defendants.
Rule 33 of the Federal Rules of Civil Procedure provides that “any ground
not stated in a timely objection is waived unless the court, for good cause, excuses
the failure.” Fed.R.Civ.P. 33(b)(4) (emphasis added); see also Richmark Corp. v.
Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992)(“It is well
established that a failure to object to discovery requests within the time frame
required constitutes a waiver of any objection.”). By failing to timely respond to
Mr. Usrey’s discovery requests, Defendants waived their right to object to those
requests.
Defendants must amend their responses in order to withdraw all objections
and provide full and complete responses to Mr. Usrey’s discovery requests.
Mr. Usrey’s request for default judgment is denied. Default judgment is an
extreme sanction and is appropriate only when a defendant fails to comply with a
court order or fails to provide any answers to interrogatories. Fed.R.Civ.P. 33(b),
33(d). Defendants’ conduct has not risen to that level. However, should counsel
continue to ignore obligations to Mr. Usrey and the Court, more severe sanctions –
including default judgment – may be imposed.
Any further discovery motions must include a certification that the parties
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have conferred regarding the issue in compliance with Rule 37 of the Federal Rules
of Civil Procedure, Local Rule 7.1(c)(1), and Local Rule 26.3(c).1
It is ORDERED:
1. Mr. Usrey’s Motions to Compel (CD 22, 27) are granted.
2. On or before June 21, 2013, Defendants shall amend their discovery
responses, withdraw all objections, and provide full and complete responses to Mr.
Usrey’s discovery requests.
3. Mr. Usrey’s request for default judgment (CD 27) is denied.
4. At all times during the pendency of this action, Mr. Usrey SHALL
IMMEDIATELY ADVISE the Court and opposing counsel of any change of
address and its effective date. Failure to file a NOTICE OF CHANGE OF
ADDRESS may result in the dismissal of the action for failure to prosecute
pursuant to Fed.R.Civ.P. 41(b).
DATED this 11th day of June, 2013.

/s/ Keith Strong
Keith Strong
United States Magistrate Judge

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Mr. Usrey was provided a copy of these rules with the Court’s February 12,
2013 Scheduling Order. CD 13.
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