Thymes v. Verizon Wireless, Inc. et al

Filing 116

ORDER by Magistrate Judge William P. Lynch denying 80 Motion to Compel; denying 81 Motion to Compel; denying 82 Motion to Compel; denying 84 Motion to serve additional requests for admission. (mej)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CARL G. THYMES,
Plaintiff,
v.

CV 16-66 KG/WPL

VERIZON WIRELESS, INC., and
CARLOS RESTREPO,
Defendants.

ORDER ON DISCOVERY MOTIONS
Pro se Plaintiff Carl Thymes filed three opposed motions to compel discovery responses
(Docs. 80, 81, and 82) and an opposed motion for leave to propound an additional twenty-five
requests for admission during the discovery process (Doc. 84). Having reviewed each of the
motions, the record, and the relevant law, the motions are denied for the reasons explained
herein.
MOTIONS TO COMPEL
Federal Rule of Civil Procedure 37 provides that a party may move for an order
compelling disclosure of certain information or responses to certain discovery requests, provided
that the motion to compel “include[s] a certification that the movant has in good faith conferred
or attempted to confer with the person or party failing to make disclosure or discovery in an
effort to obtain it without court action.” FED. R. CIV. P. 37(a)(1). A party may move to compel
deposition answers, corporate designations, interrogatory answers, and production or inspection
of documents. FED. R. CIV. P. 37(a)(3)(B). When it comes to requests for admissions, Rule 37
allows a party to move for reasonable expenses, including attorney’s fees, incurred when another

party failed to admit a matter requested under Rule 36 and that matter is later proven true or the
document is proven genuine. FED. R. CIV. P. 37(c)(2).
D.N.M.LR-Civ. 37.1 provides that a party seeking relief under Federal Rule of Civil
Procedure 37(a) “must attach to the motion a copy of: (a) the interrogatory, request for
production or inspection, relevant portion of deposition transcript, or request for admission; and
(b) the response or objection thereto.” D.N.M.LR-Civ. 26.6 provides that a “party served with
objections to: an interrogatory; request for production or inspection; or request for admission
must proceed under D.N.M.LR-Civ. 37.1 within twenty-one (21) days of service of an
objection,” and that “[f]ailure to proceed within this time period constitutes acceptance of the
objection.” The Court “may, sua sponte or on motion by a party, change the twenty-one (21) day
period.” D.N.M.LR-Civ. 26.6. Local Rule 7.1(a) states that, for all motions, the “[m]ovant must
determine whether a motion is opposed, and a motion that omits recitation of a good-faith
request for concurrence may be summarily denied.” D.N.M.LR-Civ. 7.1(a).
1. Interrogatories
Thymes served Interrogatories on Defendant Cellco Partnership d/b/a Verizon Wireless
(“Verizon”) on September 28, 2016. (Doc. 53; Doc. 92 at 1.) Verizon served its responses and
objections on October 31, 2016. (Doc. 60; Doc. 92 at 1.) Thymes emailed defense counsel on
November 14, 2016, asking if Verizon would amend its response without court intervention.
(Doc. 92 Ex. 1 at 1.) Defense counsel responded on November 15, 2016, and sought clarification
of what Thymes requested. (Id. Ex. 1 at 2.) Thymes replied on November 16, 2016, and stated, “I
am in the process of deciding whether to respond to your request or just file a motion to compel.”
(Id.) Ultimately, Thymes filed the motion to compel Interrogatory answers on December 30,
2016. (Doc. 80.)

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Verizon contends that the motion should be denied because Thymes failed to comply
with the good faith requirement of Federal Rule 37(a), the Local Rule 37.1 requirement of
appending discovery requests and responses to motions to compel, the timing requirement of
Local Rule 26.6, and the good faith requirement of Local Rule 7.1(a). Any of these grounds,
individually, is sufficient to deny the motion.
Thymes failed to include a good faith certification in his motion to compel. In his Reply,
Thymes contends that my declining to rule on oral motions at a December 16, 2016, status
conference and informing Thymes that he would have to file formal motions “negat[ed] the need
to meet and confer again.” (Doc. 95 at 2.) Thymes is wrong. My statement that I would not rule
on oral motions and would instead require formal motions practice did not, does not, and will not
in the future obviate the need to follow all procedural rules. Thymes essentially concedes that he
did not make any good faith attempt to confer with Verizon prior to filing the motion to compel,
and therefore did not comply with Federal Rule 37(a).
Thymes did not include the Interrogatories and Verizon’s disputed responses thereto
when filing his motion to compel, as required by Local Rule 37.1. Without reviewing Verizon’s
answers and objections to the Interrogatories, I cannot determine whether the answers or
objections are sufficient. Thymes asserts in Reply that he believes “that citing the objection part
in his motion is enough for the court to compel and answer to this objection.” (Doc. 95 at 3.)
Thymes is wrong. Thymes’s failure to comply with this rule frustrates the deliberative process
and renders me without sufficient information to find in his favor.
Verizon responded to the Interrogatories on October 31, 2016. Thymes did not file his
motion to compel until December 30, 2016. Thymes does not contend that he was granted an
extension of the Local Rule 26.6 timing requirement, nor did he argue that good cause exists for

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the delay. Accordingly, I find that Thymes’s failure to file his motion to compel within the
strictures of Local Rule 26.6 constitutes acceptance of Verizon’s objections to the
Interrogatories.
Finally, not only did Thymes fail to confer with defense counsel before filing this motion,
but he failed to include a good faith recitation of the same, as required by Local Rule 7.1. Local
Rule 7.1 is clear that failure to include the good faith recitation constitutes grounds for denying
the motion.
For all of these reasons, the motion to compel Interrogatory answers (Doc. 80) is denied.
2. Requests for Production
Thymes served Requests for Production on Verizon on October 9, 2016. (Doc. 55; Doc.
91 at 1.) Verizon served its responses and objections on November 14, 2016. (Doc. 64; Doc. 91
at 1.) Thymes emailed defense counsel on November 14, 2016, asking if Verizon would amend
its response without court intervention. (Doc. 91 Ex. 1 at 1.) Defense counsel responded on
November 15, 2016, and sought clarification of what Thymes requested. (Id. Ex. 1 at 2.) Thymes
replied on November 16, 2016, and stated, “I am in the process of deciding whether to respond to
your request or just file a motion to compel.” (Id.) Ultimately, Thymes filed the motion to
compel responses to his Requests for Production on December 30, 2016. (Doc. 81.)
Verizon contends that the motion should be denied because Thymes failed to comply
with the good faith requirement of Federal Rule 37(a), the Local Rule 37.1 requirement of
appending discovery requests and responses to motions to compel, the timing requirement of
Local Rule 26.6, and the good faith requirement of Local Rule 7.1(a). Any of these grounds,
individually, is sufficient to deny the motion.

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Thymes failed to include a good faith certification in his motion to compel. In his Reply,
Thymes contends that my declining to rule on oral motions at a December 16, 2016, status
conference and informing Thymes that he would have to file formal motions “negat[ed] the need
to meet and confer again.” (Doc. 94 at 2.) Thymes is wrong. My statement that I would not rule
on oral motions and would instead require formal motions practice did not, does not, and will not
in the future obviate the need to follow all procedural rules. Thymes essentially concedes that he
did not make any good faith attempt to confer with Verizon prior to filing the motion to compel,
and therefore did not comply with Federal Rule 37(a).
Thymes did not include the Requests for Production and Verizon’s disputed responses
thereto when filing his motion to compel, as required by Local Rule 37.1. Without reviewing
Verizon’s responses and objections to the Requests for Production, I cannot determine whether
the answers or objections are sufficient. Thymes asserts in Reply that he believes “that citing the
objection part in his motion is enough for the court to compel and answer to this objection.”
(Doc. 94 at 3-4.) Thymes’s failure to comply with this rule frustrates the deliberative process and
renders me without sufficient information to find in his favor.
Verizon responded to the Requests for Production on November 14, 2016. Thymes did
not file his motion to compel until December 30, 2016. Thymes does not contend that he was
granted an extension of the Local Rule 26.6 timing requirement, nor did he argue that good cause
exists for the delay. Accordingly, I find that Thymes’s failure to file his motion to compel within
the strictures of Local Rule 26.6 constitutes acceptance of Verizon’s objections to the Requests
for Production.
Finally, not only did Thymes fail to confer with defense counsel before filing this motion,
but he failed to include a good faith recitation of the same, as required by Local Rule 7.1. Local

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Rule 7.1 is clear that failure to include the good faith recitation constitutes grounds for denying
the motion.
For all of these reasons, the motion to compel responses to the Requests for Production
(Doc. 81) is denied.
3. Requests for Admission
Thymes served Requests for Admission on Verizon on November 16, 2016. (Doc. 67;
Doc. 90 at 1.) Verizon served its responses and objections on December 16, 2016. (Doc. 76; Doc.
90 at 1.) Thymes filed the motion to compel affirmative responses to his Requests for Admission
on December 30, 2016. (Doc. 82.)
Verizon contends that the motion should be denied because Thymes is not entitled to the
relief requested and because he failed to comply with the good faith requirement of Federal Rule
37(a), the Local Rule 37.1 requirement of appending discovery requests and responses to
motions to compel, and the good faith requirement of Local Rule 7.1(a). Any of these grounds,
individually, is sufficient to deny the motion.
Thymes failed to include a good faith certification in his motion to compel. In his Reply,
Thymes contends that my declining to rule on oral motions at a December 16, 2016, status
conference and informing Thymes that he would have to file formal motions “negat[ed] the need
to meet and confer again.” (Doc. 96 at 2.) Thymes is wrong. My statement that I would not rule
on oral motions and would instead require formal motions practice did not, does not, and will not
in the future obviate the need to follow all procedural rules. Thymes essentially concedes that he
did not make any good faith attempt to confer with Verizon prior to filing the motion to compel,
and therefore did not comply with Federal Rule 37(a).

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Thymes did not include the Requests for Admission and Verizon’s disputed responses
thereto when filing his motion to compel, as required by Local Rule 37.1. Without reviewing
Verizon’s responses and objections to the Requests for Admission, I cannot determine whether
the answers or objections are sufficient. Thymes’s failure to comply with this rule frustrates the
deliberative process and renders me without sufficient information to find in his favor.
Not only did Thymes fail to confer with defense counsel before filing this motion, but he
failed to include a good faith recitation of the same, as required by Local Rule 7.1. Local Rule
7.1 is clear that failure to include the good faith recitation constitutes grounds for denying the
motion.
Finally, even if Thymes had complied with all of the procedural rules discussed above, he
would still not be entitled to relief. First, Federal Rule of Civil Procedure 37 does not provide a
mechanism by which parties may dispute responses to Requests for Admission. Rather, Rule 37
provides a sanction when a party fails to admit a matter that is later proven and the party did not
meet any of the exceptions. Rule 36(a)(6), however, allows a party to move to determine the
“sufficiency” of an answer or objection to a request for admission. A response to a request for
admission may be considered insufficient where the response is not “specific” or where the
explanation for a failure to admit or deny is not “in detail” as required by Rule 36(a)(4). See
Foretich v. Chung, 151 F.R.D. 3, 5 (D.D.C. 1993) (quoting WRIGHT & MILLER, FEDERAL
PRACTICE

AND

PROCEDURE § 2263 (1970)). However, a denial is specific and is a proper

response to a request for admission, and a party is not required to state the reasons why it denied
a request for admission. See United Coal Cos. v. Powell Constr. Co., 839 F.2d 958, 967-68 (3d
Cir. 1988); Michael v. Wes Banco Bank, Inc., No. CIV A 5:04CV46, 2006 WL 1705935, at *3
(N.D. W. Va. June 16, 2006) (unpublished).

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Here, Thymes has not proven that the matters denied are, in fact, true. Perhaps more to
the point, Verizon provided a reasonable basis for each contested Request for Admission. (See
Doc. 90 at 3-5.) Should Thymes later prove these matters true, he may revisit the issue with the
presiding judge. As it stands, Thymes is not entitled to an order compelling Verizon to admit
disputed matters.
For all of these reasons, the motion to compel affirmative responses to the Requests for
Admission (Doc. 82) is denied.
4. Attorney Fees
Verizon seeks its attorney’s fees and costs, pursuant to 28 U.S.C. § 1927, incurred in
responding to each of the discovery motions. (Docs. 90, 91, and 92.) Thymes also seeks fees,
pursuant to Federal Rule of Civil Procedure 37 and 28 U.S.C. § 1927. Because Thymes did not
prevail on any of his motions, his requests are denied.
Section 1927 provides that “[a]ny attorney or other person admitted to conduct cases in
any court of the United States . . . who so multiplies the proceedings in any case unreasonably
and vexatiously may be required by the court to satisfy personally the excess costs, expenses,
and attorneys’ fees reasonably incurred because of such conduct.” “[A]n award should be made
under § 1927 ‘only in instances evidencing a “serious and standard disregard for the orderly
process of justice.”’” White v. Am. Airlines, Inc., 915 F.2d 1414, 1427 (10th Cir. 1990) (quoting
Dreilling v. Peugeot Motors of Am., Inc., 768 F.2d 1150, 1165 (10th Cir. 1985) (quoting Kiefel v.
Las Vegas Hacienda, Inc., 404 F.2d 1163, 1167 (7th Cir. 1968), cert. denied, 395 U.S. 908
(1969))). Sanctions are appropriate under § 1927 “for conduct that, viewed objectively, manifests
either intentional or reckless disregard of the attorney’s duties to the court.” Braley v. Campbell,
832 F.2d 1504, 1512 (10th Cir. 1987) (en banc).

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While I agree with Verizon that Thymes’s motions had no possibility of success under
these circumstances, I cannot find that his conduct evidenced a serious and standard disregard for
the orderly process of justice, nor that it manifests an intentional or reckless disregard of his
duties to the court. Verizon’s requests are denied.
MOTION FOR LEAVE TO PROPOUND ADDITIONAL REQUESTS FOR ADMISSION
On January 5, 2017, Thymes filed a motion for leave to serve an additional 25 Requests
for Admission. (Doc. 84.) Thymes again failed to include a good faith recitation that he sought
Verizon’s concurrence before bringing this motion, pursuant to Local Rule 7.1. Thymes’s failure
to include such a good faith recitation and to seek Verizon’s concurrence constitutes grounds to
summarily deny the motion. Thymes’s motion for leave to serve an additional 25 Requests for
Admission (Doc. 84) is denied.
IT IS SO ORDERED.
___________________________________
William P. Lynch
United States Magistrate Judge

A true copy of this order was served
on the date of entry--via mail or electronic
means--to counsel of record and any pro se
party as they are shown on the Court’s docket.

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