Bremmer et al v. Appleton Electric, LLC et al

Filing 57

ORDER denying the defendants' 46 Motion to Compel. Ordered by Magistrate Judge Thomas D. Thalken. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

RICK BREMMER and
WASTE CONNECTIONS, INC.,
8:12CV436
Plaintiffs,
vs.

ORDER

APPLETON ELECTRIC, LLC, and
EMERSON ELECTRIC, LLC.,
Defendants.
This matter is before the court on the defendants’ Motion to Compel (Filing No.
46). The defendants filed a brief (Filing No. 47) and an index of evidence (Filing No. 48)
in support of the motion. The plaintiffs filed a brief (Filing No. 52) in opposition to the
motion. The defendants filed a brief (Filing No. 55) and an index of evidence (Filing No.
56) in reply.

BACKGROUND
The plaintiffs’ action arises from an injury Rick Bremmer (Bremmer) sustained on
the defendant Appleton Electric, LLC’s (Appleton) premises. See Filing No. 1-1 - p. 1
Complaint. On May 25, 2011, Bremmer was on Appelton’s premises to deliver an order
for Waste Connections, Inc. (WCI) when Bremmer fell into an open pit approximately
twenty feet by twenty feet wide and five feet deep. Id. ¶¶ 9-13. Bremmer alleges he
sustained a torn rotator cuff and herniated disc, underwent medical care for his injuries,
and incurred medical expenses which will continue into the future.

Id. ¶ 19.

Additionally, Bremmer alleges he suffered lost wages, pain, and suffering. Id. ¶¶ 20-21.
WCI alleges it has paid and will continue to pay worker’s compensation benefits to
Bremmer. Id. ¶ 22. The plaintiffs allege the defendants’ negligence caused Bremmer’s
injuries. Id. ¶¶ 18-21. The defendants deny the plaintiffs’ allegations and assert the
affirmative defenses of

comparative negligence, contributory negligence, and

assumption of the risk. See Filing No. 1-1 p. 8 Answer ¶¶ 3-4.
On March 8, 2013, the defendants served their first set of discovery requests on
WCI.

See Filing No. 27 - Certificate of Service.

On April 16, 2013, WCI served

responses to the defendants’ discovery requests. See Filing Nos. 48 - Ex. A(1) WCI’s
Answer to Interrogatories; Ex. A(2) WCI’s Responses to Requests for Production. The
parties corresponded regarding the answers and responses during May 2013, and WCI
supplemented its answers and responses on May 29, 2013. See id. - Ex. A(3) May 14,
2013, Letter; Ex. A(4) WCI’s Supplemental Answer to Interrogatories; Ex. A(5) WCI’s
Supplemental Responses to Requests for Production. In June, the parties conferred
about additional issues related to the supplemental discovery responses, but were
unable to resolve the matter. See id. - Ex. A(6) June 10, 2013, Letter; Ex. A(7) June 14,
2013, Email.

The defendants state WCI agreed to supplement certain discovery

requests by June 21, 2013. See Filing No. 47 - Brief p. 3. WCI did serve supplemental
discovery on June 24, 2013. See Filing No. 43 - Certificate of Service. The June 24,
2013, supplementation does not address the discovery at issue here. See Filing No. 47
- Brief p. 3 n.1. On July 1, 2013, the defendants notified WCI they would file a motion to
compel, if the supplemental responses were not filed in accordance with the earlier
agreement. Id.
On July 26, 2013, the defendants filed the instant motion to compel. See Filing
No. 46. The defendants seek an order compelling WCI to supplement its responses to
Interrogatory Nos. 15 and 17, and Request for Production Nos. 10, 31, and 32. Id.
Additionally, the defendants seek an order shifting the costs associated with obtaining
the discovery due to the plaintiffs’ delay and failure to abide by their supplementation
agreement. Id.
The plaintiffs state they have encountered delay in obtaining records because
WCI is a national agency who purchased the entity who had initially contracted with
Appleton. See Filing No. 52 - Response p. 1. In any event, the plaintiffs state they
have now received and produced all relevant discovery sought by the defendants,
rendering the motion moot. Id. at 2; see also Filing No. 49 - WCI’s July 31, 2013,
Supplemental Answers to Interrogatories; Filing No. 50 - WCI’s July 31, 2013,
Supplemental Responses to Requests for Production; Filing No. 51 - Certificate of
Service. In addition, the plaintiffs argue the court should not shift the cost of the motion
to compel to the plaintiffs for two reasons. See Filing No. 52 - Response p. 2-3. First,
the plaintiffs’ delay was shorter than the defendants’ previous delay in producing
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discovery.

Id.

Second, the plaintiffs contend they fully responded to discovery

requests, which were poorly worded and overly broad. Id. at 3. The plaintiffs state that
as a professional courtesy they answered the original questions actually asked, then
also the questions the defendants meant to ask.

Id.

The plaintiffs argue the

defendants’ motion was premature given the plaintiffs’ assurances the discovery was
forthcoming, in a time period far shorter than that taken for the defendants’ production,
and the motion became moot prior to the plaintiffs’ response deadline. Id. at 6. For
these reasons, the plaintiffs seek an award of their costs associated with responding to
the motion to compel. Id.
The defendants acknowledge that the motion to compel is overwhelmingly
mooted by the plaintiffs’ July 31, 2013, production. See Filing No. 55 - Reply p. 1-2.
The defendants persist in seeking additional discovery with regard to Request for
Production No. 31 and an immediate verification by an individual from WCI that the
interrogatory responses are complete and truthful. Id. at 2-3.
Request for Production No. 31 seeks:

“Any and all documents referencing,

explaining, relating to or setting forth WCI’s policies, guidelines and/or procedures for
the [sic] handling reports of injuries by WCI employees.” See Filing No. 48 - Ex. A(5)
p. 7. The plaintiffs did not object to the request, but stated, “This information is being
gathered and to the extent it exists this response will be supplemented appropriately.”
Id. The plaintiffs supplemented the response with documents on July 31, 2013, and
stated, “See attached Employee Handbook Page 1, 66, and 69.” See Filing No. 50.
The defendants argue the response remains insufficient because the handbook pages
are themselves incomplete, suggesting more relevant information is contained on
proceeding and succeeding pages, and the handbook references a separate Health and
Safety Plan document, which was not produced. See Filing No. 55 - Reply p. 2.
Additionally, the defendants state WCI failed to sign its supplemental
interrogatories as required by Fed. R. Civ. P. 33(b), which provides “[t]he person who
makes the answer must sign them . . . .” Id. at 3. The defendants did not raise this
argument in the initial motion to compel but found it “noteworthy that Plaintiffs’ original
Answers to Interrogatories also lacked WCI’s signature, and was not remedied until two

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months after the original answers were served, and only after multiple requests by
Defendants[’] counsel.” Id.

ANALYSIS
The issues raised by the defendants in their motion to compel have been
resolved. The arguments raised by the defendants in their reply were not contained in
their original motion such that WCI could address and rectify them.

The court is

confident the parties will be able to address and immediately resolve the new issues
when they confer as required by Fed. R. Civ. P. 37(a) and NECivR 7.1(i).
The plaintiffs’ failure to provide timely discovery required the defendants to file a
motion to compel. The plaintiffs agreed to provide certain discovery before a specific
date but failed to comply with their own agreement. The plaintiffs never sought an
extension of time from the court or counsel despite clear court rules. See Fed. R. Civ.
P. 29, 33(b)(2), 34(b)(2)(A); NECivR 29.1. The plaintiffs have now provided the bulk of
the requested discovery.

The plaintiffs have provided a consistent and reasonable

explanation for the delay. Specifically, the defendants’ broad and ambiguous requests
caused some delay while the circumstances of the plaintiffs’ search caused additional
delay. This is not a case where the plaintiff hid discovery behind baseless objections,
then conceded the discovery after the defendants filed a motion to compel. Rather, the
plaintiffs consistently sought additional time to clarify the discovery sought and then
locate such discovery.

In any event, the defendants have retracted some of the

discovery sought in light of the plaintiffs’ production and arguments. Accordingly, the
court finds shifting the costs of the motion or of the response, pursuant to Fed. R. Civ.
P. 37(a), is not warranted in this case.

IT IS ORDERED:
The defendants’ Motion to Compel (Filing No. 46) is denied.
Dated this 21st day of August, 2013.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge
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