Davis et al v. Jacob S. Ciborowski Family Trust et al
Filing
77
ORDER granting 33 Motion to Compel; granting 34 Motion to Compel. So Ordered by Magistrate Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Dean Davis, Gina Colantuoni,
and James Piet
v.
Civil No. 11-cv-436-PB
Jacob S. Ciborowski Family
Trust, et al.
O R D E R
Plaintiffs bring suit under Title III of the Americans with
Disabilities Act (AADA@), alleging that the owner of a commercial
property, Jacob S. Ciborowski Family Trust (ATrust@), and the
operators of two retail stores that lease space there, Concord Arts
and Crafts and Bagel Works, Inc. (ABagel Works@), deny access to
persons with physical disabilities.1
Specifically, plaintiffs
allege that defendants failed to make the two stores and an unoccupied
storefront wheelchair-accessible during a recent construction
project, as is required under 28 C.F.R. § 36.402 and 42 U.S.C. §
12183(a)(2).
Defendants contest the claim and assert both a
counterclaim alleging bad faith, as well as affirmative defenses.
1
Plaintiffs have filed a notice of settlement with Concord Arts
and Crafts.
Plaintiffs move to compel the Trust and Bagel Works to provide
answers to certain interrogatories pertaining to their financial
resources and communications with the City of Concord about the
project.
In response, the Trust and Bagel Works object on the
grounds that the information sought is not relevant, and move for
protective orders.
Because an objection cannot be combined with a
motion for affirmative relief, the motions for a protective order
that were included in the objections are not considered here.
See
United States District Court District of New Hampshire Local Rule
7.1(a)(1).2
Standard of Review
A party may serve interrogatories on other parties that are
related to Aany nonprivileged matter that is relevant to any party=s
claim or defenseBincluding the existence, description, nature,
custody, condition, and location of any documents or other tangible
things . . . .@
Fed. R. Civ. P. 26(b)(1) & 33(a)(2); see also Fed.
R. Civ. P. 34(a) (requests to produce documents).
ARelevant
information need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the discovery of admissible
evidence.@
Fed. R. Civ. P. 26(b)(1).
A party may move for an order
to compel another party to answer an interrogatory.
2
Fed. R. Civ.
Defendants also filed separate motions for protective orders.
2
P. 37(a)(3)(B)(iii).
The party who moves to compel answers to
interrogatories over the opposing party=s objection bears the burden
of showing the relevance of the information sought.
Caouette v.
OfficeMax, Inc., 352 F. Supp. 2d 134, 136 (D.N.H. 2005).
Background
The plaintiffs, Dean Davis, Gina Colantuoni, and James Piet,
are individuals with physical disabilities who use wheelchairs.
The Trust owns property, known as Phenix Hall, located on Main Street
in Concord, New Hampshire.
The Trust leases space in Phenix Hall
to other entities, including Bagel Works.
Phenix Hall underwent a
construction project in 2010, which included work on the facade of
the building and entrances to the storefronts.3
Plaintiffs bring suit under the ADA and allege that Bagel Works
and the other storefronts in Phenix Hall are not accessible to people
who use wheelchairs and that defendants should have made changes to
the entrances to allow wheelchair access as part of the project.
Defendants assert a counterclaim that plaintiffs= ADA claim is
frivolous and filed in bad faith.
Defendants also raise several
affirmative defenses to the ADA claim, including that the alterations
plaintiffs seek are neither readily achievable nor technically
feasible, that the facilities are accessible to the maximum extent
3
The defendants object to the use of the word Arenovation@ to
describe the work done on the building.
3
feasible, and that the alterations would impose an undue burden or
create an undue hardship on the defendants.
Plaintiffs served interrogatories on the Trust, delivering them
by hand to counsel for the Trust on February 2, 2012, and served
interrogatories on Bagel Works by mailing them to counsel on February
10, 2012.4
Plaintiffs represent, and defendants do not dispute, that
defendants provided unsigned responses to the interrogatories on
March 30, 2012.
Counsel for plaintiffs then wrote to defendants=
counsel, seeking additional information for some interrogatories and
asking that defendants reconsider their decision not to answer other
interrogatories.
In response, defendants provided a copy of a
proposed protective order to plaintiffs= counsel but did not
supplement their answers to the interrogatories.
Discussion
Plaintiffs now move to compel defendants to provide answers and
documents (requested in interrogatories) that pertain to the
defendants= financial resources.5
They also move to compel
defendants to provide answers and documents in response to
interrogatories about defendants= communications with the City of
4
The Trust and Bagel Works are separate entities but are
represented by the same counsel.
5
All three plaintiffs move to compel answers to interrogatories
that were propounded by Dean Davis. Document no. 33 seeks to compel
answers from the Trust, and document no. 34 seeks answers from Bagel
Works.
4
Concord regarding the building permit process for the 2010 Phenix
Hall construction project.
Further, plaintiffs seek an award of
expenses, including attorneys= fees, incurred in filing the motions
to compel.
Plaintiffs contend that the discovery they seek is
relevant to defendants= affirmative defenses and that defendants have
waived any objections to the interrogatories by failing to provide
timely responses.
Defendants assert that the requested discovery is not relevant
because: (a) Ait is self-evident@ that defendants did not violate the
ADA; (b) defendants have not asserted affirmative defenses that
implicate financial matters; and (c) defendants have provided the
information requested about communications with the City of Concord.
I.
Timeliness of Responses
Unless otherwise provided by stipulation or an order of the
court, interrogatories must be answered within thirty days of
service.
Fed. R. Civ. P. 33(b)(2).
The grounds for objecting to
an interrogatory must be stated with specificity, and A[a]ny 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).
Further, the
person who answers interrogatories must sign them, and counsel who
interposes objections must sign the objections.
33(b)(5).
5
Fed. R. Civ. P.
In this case, neither the Trust nor Bagel Works provided answers
to the interrogatories within the thirty days allowed under Rule 33.
Neither defendants nor their counsel signed the interrogatory
answers.
Defendants have not addressed the issue of the
untimeliness of their answers.
Defendants= answers to the
interrogatories were four weeks late.
Because the answers were not
signed, however, the defendants still have not provided answers that
comply with Rule 33.
In the absence of any showing of good cause
or other explanation, defendants have waived any objection to
plaintiffs= interrogatories.
See Gomez v. Tyson Foods, Inc., No.
8:08CV21, 2012 WL 3111897, at *2 (D. Neb. July 31, 2012); Herndon
v. Logan=s Roadhouse, Inc., No. 05-459ML, 2012 WL 3042982, at *1 (D.
Ariz. July 25, 2012); Cargill, Inc. v. Ron Burge Trucking, Inc., ___
F.R.D. ___, No. 2394 (PAM/JJK), 2012 WL 2064946, at *3 (D. Minn. June
1, 2012); cf. Daniels v. Am. Power Conversion Corp., No. 05-459ML,
2007 WL 539643, at *3 (D.R.I. Feb. 15, 2007) (delay of nine days with
adequate explanation excused).
Nevertheless, in the interest of
completeness, the court addresses defendants= objections below.
II.
Interrogatories Pertaining to Financial Resources
Plaintiffs propounded four interrogatories to each defendant
pertaining to that defendant=s financial resources.
In those
interrogatories, plaintiffs asked each defendant to identify all of
its assets and all of the real property it owned, to detail all debt,
6
and to provide a complete copy of its tax returns and supporting
financial documentation for the last five years.6
Defendants
contend that the interrogatories call for discovery that is not
relevant and that for certain interrogatories a response would impose
an undue burden.
Plaintiffs contend that the interrogatories are
relevant to two of defendants= affirmative defenses: that
accessibility is not readily achievable and would cause an undue
burden or hardship.
Bagel Works argues that the interrogatories are not relevant
because it does not own Phenix Hall, and under the terms of its lease
from the Trust, it is not permitted to make structural changes to
the property.
As plaintiffs point out, however, Title III of the
ADA also applies to those who lease space.
42 U.S.C. § 12182(a).
Bagel Works has not shown that its contractual arrangements with the
Trust preclude plaintiffs= ADA claim against it.
See, e.g., 28 C.F.R.
§ 36.201(b); Botosan v. Paul McNally Realty, 216 F.3d 827, 834 (9th
Cir. 2000); Hoewischer v. Terry, No. 3:11-cv-405-J-32J87, 2011
WL 5510274, at *2 (M.D. Fla. Nov. 10, 2011).
6
These are interrogatories numbered 28 through 31 propounded
to the Trust, and interrogatories 21 through 24 propounded to Bagel
Works.
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1.
Readily achievable
Discrimination under the ADA includes Aa failure to remove
architectural barriers . . . [unless the] entity can demonstrate that
the removal of a barrier under clause (iv) is not readily achievable
. . . .@
§ 12182(b)(2)(A)(iv)&(v).
Barrier removal is readily
achievable if it is Aeasily accomplishable and able to be carried out
without much difficulty or expense.@
§ 12181(9).
Among the factors
to be considered for purposes of deciding whether barrier removal
is readily achievable is Athe overall financial resources of the
covered entity . . . .@
Id.
Defendants= financial resources are, therefore, relevant to
their defense that achieving accessibility is not readily
achievable.
Because the information sought is relevant to
defendants= affirmative defense, it must be produced without
requiring a showing of good cause by the moving party.
See Fed. R.
Civ. P. 26(b)(1); see also 28 C.F.R. § 36.104.
Defendants concede that they asserted the affirmative defense
that barrier removal would not be readily achievable but argue
that the defense is not relevant to plaintiffs= ADA claim.7
7
In their objections, defendants concede that their financial
resources are relevant to the defense that accessiblity is not
readily achievable but asserted that they did not raise that defense.
As plaintiffs point out, defendants= answers include the affirmative
defense that accessibility would not be readily achievable. See
Answers, doc. no. 13 ¶ 43, doc. no. 15 ¶ 53. Defendants have since
abandoned the assertion that they did not raise the defense.
8
Defendants further assert, without citation to authority, that a
plaintiff bears the burden of showing that a defense is relevant to
a claim asserted by that plaintiff.
While plaintiffs have the burden
to show that their discovery requests are relevant to a claim or
defense in the case, they have no burden to show that defendants
properly pleaded a relevant defense.
In short, information about
defendants= financial resources is relevant to the defense that
removal of barriers is not readily achievable.
Thus, to the extent
defendants intend to maintain that affirmative defense, their
financial resources are discoverable.
2.
Undue burden
Defendants also assert the affirmative defense that achieving
accessibility would impose an undue burden on them.
Under the ADA,
discrimination includes Aa failure to take such steps as may be
necessary to ensure that no individual with a disability is excluded,
denied services, segregated or otherwise treated differently than
other individuals because of the absence of auxiliary aids and
services, unless the entity can demonstrate that taking such steps
would . . . result in an undue burden.@
§ 12182(b)(2)(A)(iii).
Plaintiffs contend that the defense of undue burden does not apply
to their claim and is frivolous, but because defendants have asserted
the defense, they seek discovery pertaining to it.
9
ATo determine
whether an action would result in an undue burden, the Court considers
several factors: the nature and cost of the action; the financial
resources of the site involved; the number of persons employed at
the site; the effect on expenses and resources; the administrative
and financial relationship of the site to the corporation; and, if
applicable, the overall financial resources of the parent
corporation and the number of its facilities.@
Roberts v. KinderCare
Learning Ctrs., Inc., 895 F. Supp. 921, 926 (D. Minn. 1995) (citing
28 C.F.R. 36.104). Defendants do not appear to dispute that their
financial resources are relevant to a defense of undue burden.
Therefore, plaintiffs are entitled to responses to the
interrogatories that seek information about defendants= financial
resources.8
III. Interrogatories Pertaining to Communications with City of
Concord
Based on plaintiffs= reply to Bagel Work=s objection to the motion
to compel, it appears that plaintiffs have now received the documents
that they sought through the motion.
With respect to the Trust,
plaintiffs move to compel the Trust to provide a complete response
8
There appears to be no dispute that the two affirmative
defenses at issue in the motion to compel are inapposite to plaintiffs=
claim in this case. Plaintiffs reasonably propose to withdraw their
interrogatories pertaining to those defenses in the event defendants
voluntarily withdraw those defenses. Defendants thus have the
opportunity to avoid discovery of their financial resources by
withdrawing the defenses.
10
to Interrogatory 26.
The Trust objects to the motion on the ground
that it has answered Interrogatory 26 and no further answer is
required.
Interrogatory 26 asks: APlease identify all contact with the
City of Concord in seeking approval for the Phenix Hall renovation.
A complete answer will include identification of all dates of
communication, written and oral, and all documents generated as a
result of the communication, application, or consultation.@
In
response, the Trust objected to the use of the term Arenovated@ and
also stated, without waiving that objection or identifying who was
answering the interrogatory, A[t]o the best of my recollection I spoke
with Mike Santa, the City=s code enforcement officer, the City=s
design-review committee and the planning board.@
On its face, the Trust=s response does not provide a complete
answer to Interrogatory 26.
The Trust=s arguments in its objection
and surreply are not a substitute for its answer nor do they provide
timely objections to the interrogatory.
The Trust must provide a
complete answer to Interrogatory 26.
IV.
Bifurcation
In their objections to the motions to compel, the Trust and Bagel
Works argue, without citation to authority, that the court should
not compel discovery pertaining to their financial resources unless
11
and until the plaintiffs prove their ADA claim.
To the extent
defendants seek to bifurcate the case under Federal Rule of Civil
Procedure 42(b), such a request far exceeds the scope of the discovery
issue presented by plaintiffs= motions to compel.
Because financial records may be sensitive and require certain
measures to protect confidentiality, a protective order or
stipulation may be appropriate for that purpose.
The parties shall
confer and use their best efforts to agree on the terms of a proposed
protective order that ensures the confidentiality of the financial
information disclosed.
V.
Award of Expenses
Plaintiffs seek an award of the reasonable fees and expenses
they incurred in filing the motions to compel.
Federal Rule of Civil
Procedure 37(a)(5) provides for such an award when the moving party
is successful and after giving the parties an opportunity to be heard
on the issue.
Fed. R. Civ. P. 37(a)(5)(A).
Because the motions are
granted, the parties shall provide memoranda on the issue of an award
of expenses.
Conclusion
The plaintiffs= motions to compel (document nos. 33 and 34)
are granted, as follows.
Bagel Works shall provide complete
responses to Interrogatories 21 through 24 (document no. 34).
12
The
Trust shall provide complete responses to Interrogatories 26 and 28
through 31 (document no. 33).
Counsel shall use their best efforts to agree on a proposed
protective order to address issues of confidentiality as to the
defendants= financial records.
Plaintiffs shall file a motion for an award of fees and expenses
under Federal Rule of Civil Procedure 37(a)(5)(A), along with a
supported and detailed statement of the fees and expenses requested,
on or before September 13, 2012.
The defendants shall file their
responses on or before September 19, 2012.
SO ORDERED.
___________________________
Landya McCafferty
United States Magistrate Judge
August 30, 2012
cc:
Jack P. Crisp, Jr.
Aaron Jesse Ginsberg, Esq.
John P. LeBrun, Esq.
Cindy Robertson, Esq.
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