Bussing v. Legent Clearing, LLC et al

Filing 60

ORDER - the plaintiff's motions to compel, #48 , #49 , and #53 are denied without prejudice to re-filing, if appropriate, at a later time. Ordered by Magistrate Judge Cheryl R. Zwart. (BHC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JULIE A. BUSSING,
Plaintiff,

8:12CV238

vs.
MEMORANDUM AND ORDER
COR CLEARING, LLC, COR
SECURITIES HOLDINGS, Inc.; CARLOS
P. SALAS, in their Individual Capacities;
and CHRISTOPHER L. FRANKEL, in
their Individual Capacities;
Defendants.
The plaintiff, while appearing pro se, filed three motions to compel the defendants
to provide: 1) a corrected 2012 W-2 form; 2) a correct 2012 1099-Misc form; 3) copies
of all employment, benefit, and compliance forms completed during Plaintiff’s
employment at Legent; 4) check stub information for reconciling the totals reported on
the tax forms received; and 5) a statement acknowledging that Defendants’ assertion that
the Plaintiff received an overpayment is erroneous. (Filing Nos. 48, 49, and 53). The
plaintiff alleges the defendants’ refusal to provide the requested information is evidence
of the defendants’ ongoing retaliatory conduct against the plaintiff. The defendants argue
the information requested is not relevant to the claims alleged in Plaintiff’s complaint,
and that the plaintiff cannot file a motion to compel absent first serving discovery on the
defendants.
The defendants moved to dismiss the plaintiff’s complaint in August of 2012.
(Filing No. 26). Counsel entered an appearance on the plaintiff’s behalf on April 5, 2013,
(Filing No. 54), and requested leave to file a supplemental brief in opposition to the
motion to dismiss. (Filing No. 55). This request was granted, and the motion to dismiss
is not yet fully submitted. (Filing No. 59).

A scheduling order was never entered which permitted the parties to begin
discovery, (Fed. R. Civ. P. 26(d)), and there is no evidence the plaintiff served discovery
on the defendants. The plaintiff must first serve her discovery, and if the defendants fail
to respond or adequately respond, she can then move to compel. See Fed. R. Civ. P. 37.

Accordingly,
IT IS ORDERED that the plaintiff’s motions to compel, (Filing Nos. 48, 49, and
53), are denied without prejudice to re-filing, if appropriate, at a later time.

May 20, 2013.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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