Auge v. Stryker Corporation et al

Filing 123

ORDER by Magistrate Judge Stephan M. Vidmar DENYING 67 Defendants' Motion to Compel further response to RFA no. 2; DENYING 96 Plaintiff's Motion for Leave to File a Surreply to Defendants' Motion to Compel further response to RFA no. 2; and AWARDING reasonable expenses to Plaintiff. (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CLARKE COLL,
Plaintiff,1
v.

No. 14-cv-1089 KG/SMV

STRYKER CORPORATION and
HOWMEDICA OSTEONICS CORPORATION,
Defendants.
ORDER DENYING DEFENDANTS’ MOTION TO COMPEL
PLAINTIFF’S RESPONSE TO REQUEST FOR ADMISSION NO. 2 AND
DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE SURREPLY
THIS MATTER is before the Court on: (1) Defendants’ Motion to Compel Plaintiff’s
Response to Request for Admission No. 2 [Doc. 67], filed on November 7, 2016, which the
Court construes as a motion to determine the sufficiency of Plaintiff’s response to Request for
Admission number 2, and (2) Plaintiff’s Motion for Leave to File Surreply Concerning
Defendants’ Motion to Compel Answer to Request for Admission No. 2 [Doc. 96], filed on
December 9, 2016. The Court has considered the briefing on the motions [Docs. 67, 78, 87, 96,
99, 102], the relevant portions of the record, the oral argument of February 27, 2017, and the
relevant law. Being otherwise fully advised in the premises and for the reasons stated on the
record at the February 27, 2017 oral argument,

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Mr. Coll was substituted as Plaintiff in this matter when the original Plaintiff, Wayne Augé, II, M.D., filed for
bankruptcy. Mr. Coll is the trustee of the bankruptcy estate. [Doc. 30].

IT IS ORDERED, ADJUDGED, AND DECREED that Defendants’ Motion to Compel
Plaintiff’s Response to Request for Admission No. 2 [Doc. 67] is DENIED. Plaintiff’s response
and supplement response to Request for Admission number 2 are sufficient.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File Surreply
Concerning Defendants’ Motion to Compel Answer to Request for Admission No. 2 [Doc. 96] is
DENIED.
IT IS FURTHER ORDERED that, pursuant to Fed. R. Civ. P. 36(a)(6) and 37(a)(5)
and because Defendants were not substantially justified in filing the motion, reasonable expenses
are AWARDED to Plaintiff. Plaintiff must file an affidavit of such expenses no later than
March 9, 2017. Defendants may object to the affidavit no later than March 23, 2017.
IT IS SO ORDERED.

_____________________________
STEPHAN M. VIDMAR
United States Magistrate Judge

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