Med Flight Air Ambulance, Inc. v. MGM Resorts International et al
Filing
51
ORDER by Magistrate Judge Kevin R. Sweazea granting in part and denying in part 39 Motion to Compel (cbf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MED FLIGHT AIR AMBULANCE, INC.,
Plaintiff,
No. 1:17-cv-00246-WJ-KRS
v.
MGM RESORTS INTERNATIONAL;
and UMR, INC.,
Defendants.
ORDER GRANTING IN PART PLAINTIFF’S MOTION TO COMPEL, DIRECTING
DEFENDANT MGM RESORTS INTERNATIONAL TO SUPPLEMENT
RESPONSES, AND DENYING AS MOOT PLAINTIFF’S REQUEST
FOR EXPEDITED CONSIDERATION
THIS MATTER comes before the Court on Plaintiff Med Flight Air Ambulance, Inc.’s
motion to compel responses to court-authorized discovery on the issue of personal jurisdiction.
[Doc. 39]. Med Flight contends that Defendant MGM Resorts International did not fully answer
interrogatories 9, 10, and 12 along with requests for production 1-5. 1 MGM objected on
numerous grounds, primarily centered on its belief that these requests were insufficiently tailored
to the limited scope of discovery allowed. The Court heard oral argument on the on the motion
on September 11, 2017, and took the matter under advisement. The Court now GRANTS IN
PART AND DENYS IN PART Med Flight’s motion to compel.
I.
BACKGROUND
Med Flight sued MGM and Defendant UMR, Inc., the administrator of MGM’s selfinsured employee plan, when they refused to pay Med Flight for the medivac of Adrian
1
During the hearing and in its reply, Med-Flight confirmed it seeks relief only with respect to the interrogatories and
requests for production identified above despite a more universal demand for complete answers in its “Rule37”correspondence to MGM. [Compare Doc. 39-1 with Doc. 45]. In light of this concession, the Court has only
considered the specific requests and responses that appear to be in dispute.
Order Granting in Part Plaintiff’s
Motion to Compel
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Hernandez from El Paso, Texas to Las Vegas, Nevada. 2 [Doc. 14]. After the case was removed
to this Court, MGM moved to dismiss for lack of personal jurisdiction. [Doc. 21]. Although
MGM concedes UMR has ties to New Mexico, MGM contends that New Mexico is a
constitutionally inconvenient forum—MGM contends it has no presence, property, employees,
or other connections that would render it amendable to suit here. [Doc. 21]. Before responding
to MGM’s motion to dismiss, Med Flight sought, and received, the Court’s permission to
conduct limited jurisdictional discovery. [Docs. 24, 33].
In its May 26, 2017 order, the Court allowed Med Flight to propound fifteen
interrogatories, fifteen requests for admission, and fifteen requests for production “narrowly
tailored” to constitutional inconvenience factors outlined in Peay v. BellSouth Med. Assistance
Plan, 205 F.3d 1206, 1212 (10th Cir. 2000). [Doc. 33]. Med Flight subsequently served its
written discovery, and MGM tendered responses and objections. Dissatisfied with information
given (and withheld), and after exchanging correspondence with MGM about the sufficiency of
MGM’s objections, Med Flight filed the instant motion to compel seeking complete answers to
interrogatories 9, 10, 12 and requests for production 1-5. [Doc. 39].
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 26(b)(1) allows the Court to limit discovery, including
interrogatories and requests for production. See also Fed. R. Civ. P. 33(a) & 34(a). Thus, the
Court’s requirement that Med Flight “narrowly tailor” its request to the Peay considerations
controls, not Rule 26’s broader “proportionality” provision that governs the usual case. See Fed.
R. Civ. P. 26(b)(1) (providing that “[u]nless otherwise limited by court order . . . Parties may
obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or
2
The parties do not dispute that Med Flight is an “employee” for purposes of the ERISA-governed plan at issue here
because Adrian Hernandez, an MGM employee, assigned his rights to payment under the MGM’s plan to Med
Flight.
Order Granting in Part Plaintiff’s
Motion to Compel
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defense and proportional to the needs of the case . . . .”); Breakthrough Mgmt. Group, Inc. v.
Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1188 (10th Cir. 2010) (discussing the trial
court’s “wide discretion” to fashion discovery on jurisdictional contests).
Under Peay, Med Flight’s discovery must focus on (1) the extent of the defendant’s
contacts with the [forum]”; (2) “the inconvenience” of defending in a forum other than the
defendant’s place of business or residence, “including (a) the nature and extent and interstate
character of the defendant’s business, (b) the defendant’s access to counsel, and (c) the distance
from the defendant to the place where the action was brought”; (3) “judicial economy”; (4)
“whether discovery proceedings will take place outside” the defendant’s state(s); and (5) “the
nature of the regulated activity in question and the extent of impact that the defendant’s activities
have beyond the borders of his state of residence or business.” 629 F.3d at 1188 (citation
omitted). Within this scope, Federal Rule of Civil Procedure 37 authorizes Med Flight to move
to compel discovery responses that are incomplete or evasive where good faith attempts at
resolving disputes have failed. See Fed. R. Civ. P. 37(a).
III. ANALYSIS
A. Interrogatories
In interrogatories 9, 10 and 12, Med Flight asked MGM to (1) describe UMR’s claims
processing duties under MGM’s “self-insured health insurance plan” (No. 9); (2) identify
lawsuits since 2010 MGM or “affiliate resort” employees in Maryland, New York, Mississippi,
New Jersey, Michigan, Massachusetts or Illinois have filed (No. 10); and (3) identify employees
and agents involved in denying Med Flight’s claim (No. 12). MGM did not answer interrogatory
9 and partially answered interrogatories 10 and 12. MGM justified its responses by interposing a
Order Granting in Part Plaintiff’s
Motion to Compel
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laundry list of objections. 3 Only the common objection warrants analysis: MGM’s claim that
the interrogatories are not “narrowly tailored” to Peay factors. 4 The Court concludes the
interrogatories all fall within Peay’s ambit, but some of the requests require modification.
Contrary to MGM’s suggestion, the presence (or absence) of duties governing the
processing of employee claims outside of Nevada, as sought in interrogatory 9, bears on the
extraterritorial nature of MGM’s operations as well as connection to the District of New Mexico.
Similarly, the presence (or absence) of duties dictating where claims are processed could shed
light on the situs of discovery. Without belaboring the point, interrogatory 10’s request for
lawsuits by MGM employees may demonstrate the national (or state specific) character of
MGM’s business. Basic information on pending litigation could also show (or disprove) that
3
For interrogatory 9, MGM’s objected that: (1) Med-Flight did not provide a timeframe; (2) Med-Flight failed to
define “self-insured health insurance plan”; (3) Med-Flight exceeded the fifteen-interrogatory limit by interposing
too many subparts in previous requests; and (4) responding could include the production of “confidential,
proprietary, and commercially sensitive” documents that would require the entry of “an appropriate confidentiality
order.” The Court overrules these objections. There is only one employee plan at issue in this case, and MGM’s
demand that the term be further defined is disingenuous. See Pulsecard, Inc. v. Discover Card Servs., Inc., 168
F.R.D. 295, 310 (D. Kan. 1996) (a party “should exercise reason and common sense to attribute ordinary definitions
to terms and phrases utilized in interrogatories”). MGM waived its “subpart” challenge—that Med-Flight exceeded
the 15-interrogatory limit by packing more than one question into a numbered request—when MGM decided to
answer some interrogatories but not others. See Allahverdi v. Regents of Univ. of New Mexico, 228 F.R.D. 696
(D.N.M. 2005) (“When a party believes that another party has asked too many interrogatories, the party to which the
discovery has be[en] propounded should object to all . . . or file a motion for protective order”; “[b]y answering
some and not answering others, the [defendant] waived this objection”). Finally, a confidentiality order is now in
place, and MGM’s concerns over disclosing sensitive information have no continuing validity. For Interrogatory 10,
MGM repeats the same objections, which are overruled as stated above, but adds that the request seeks information
that is not relevant or proportional to the needs of the case under Fed. R. Civ. P. 26(b)(1). MGM’s “proportionality”
argument is misplaced because that requirement applies only where the Court does not limit discovery. See id.
(“Unless otherwise limited by court order . . . [p]arties may obtain discover regarding any nonprivileged matter that
is relevant to any party’s claim or defense and is proportional to the needs of the case. . . .”) (emphasis added). The
Court limited discovery here. [Doc. 33]. For interrogatory 12, MGM lodged the same objections, which the Court
overrules as stated above.
4
In response to Med Flight’s motion to compel, MGM also makes two more general challenges in defense of the
limited information it provided to discovery requests: (1) Med Flight admitted it received sufficient information to
responds to the motion to dismiss for lack of personal jurisdiction; and (2) Med Flight did not meet and confer on
interrogatory 9. The first assertion appears to be a waiver argument, but because MGM does not offer any legal
basis to support it, the Court will not consider further. Moreover, neither Rule 33 nor 34 include among the
permissible objections one that permits a party to withhold information because of the party’s belief that the other
side concedes it has received sufficient information. The second argument has some traction; it appears that Med
Flight did not mention its concerns in the Rule 37 correspondence. The parties are reminded of their duty to meet
and confer under the Rules, but because the Court must address the other discovery requests, it analyzes
interrogatory 9 for the sake of efficiency and because MGM does not contend it would have changed its response
had Med Flight sought its input.
Order Granting in Part Plaintiff’s
Motion to Compel
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MGM defends actions in a multitude of jurisdictions that are neither MGM’s principal place of
business nor MGM’s state of incorporation. The identity of employees involved in the claim
denial, the subject of interrogatory 12, would allow Med Flight to verify MGM’s blanket
assertion that all employees are located in Nevada and independently research employees’
connection to New Mexico (and other jurisdictions). Likewise, any agents involved in the
decision making are relevant because an agent’s contact with a forum may be imputed to the
principal. 5 See Fireman’s Fund Ins. Co. v. Thyssen Mining Constr. of Can., 703 F.3d 488, 493494 (10th Cir. 2012).
The Court, however, agrees with MGM that interrogatory 9 temporally is too broad. The
relevant duties are those in effect at the time Med Flight’s claim was processed and ultimately
denied. As written, interrogatory 10 is confusing. MGM is the only entity for which the Court
authorized discovery; to the extent Med Flight seeks information on “affiliates,” whatever the
term may mean, the Court will not permit discovery. More than seven years of lawsuits also
strikes the Court as unnecessary. While Med Flight understandably wants a full picture of
MGM’s litigation, this goal is achieved by limiting the timeframe from January of 2011 to
October 2016, representing the five year period up until MGM finally denied payment. In sum,
the Court orders MGM to answer interrogatory 9 and supplement interrogatories 10 and 12
subject to the foregoing clarifications and the parties’ agreed upon confidentiality agreement.
B. Requests for Production
Requests for production 1-5 asked MGM for: (1) the employee health plan at issue; (2)
the summary plan description and amendments thereto; (3) contracts with UMR, including
amendments and documents defining UMR and MGM’s relationship; (4) correspondence related
5
If there were not agents involved, then MGM was obligated to say so under oath and not simply refuse to answer
that part of the interrogatory.
Order Granting in Part Plaintiff’s
Motion to Compel
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to the determination of Med Flight’s claim; and (5) electronically stored information related to
the claim. It is undisputed that that MGM did not produce any documents, relying on the same
objections 6 and contention that the requests exceed the permissible scope of jurisdictional
discovery. The Court concludes these requests are relevant under Peay, but require additional
tailoring.
The plan itself (RFP 1) and the manner in which MGM has summarized the plan (RFP 2)
may document how MGM handles claims from across the country, showing whether contact
with a particular forum is mandated as well as MGM’s reach into the national economy.
Additionally, the de facto and de jure relationship between UMR and MGM, as sought in the
third request for production, is critical—it bears directly on whether UMR’s conceded
connection to New Mexico should be imputed to MGM. Finally, correspondence, documents,
and electronically stored information related to the claim (RFPs 4 & 5) potentially implicate
conduct directed at New Mexico or more broadly across the country.
At the same time, only the plan at issue, the summary plan description(s), and contract(s)
between UMR and MGM in effect at the time Med Flight’s claim was processed and ultimately
denied are necessary to the jurisdictional analysis. The Court will not permit discovery beyond
this timeframe. The Court is also cognizant that, as written, requests four and five could involve
the production of privileged material. Obviously, MGM should not produce documents
protected by the attorney-client privilege, but it was incumbent upon MGM to produce a
privilege log when MGM objected on this ground. See Fed. R. Civ. P. 26(b)(5)(ii). At this
juncture, the Court will not deem MGM’s failure to comply a waiver. Instead, the Court reminds
the parties that when asserting privilege they must “describe the nature of the documents,
6
MGM’s laundry list of objections is discussed and rejected in footnote 2. The Court sees no reason to analyze the
objections further in the context of the requests for production and overrules the objections for the same reasons.
Order Granting in Part Plaintiff’s
Motion to Compel
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communications, or tangible things not produced or disclosed” sufficient to “enable other parties
to assess the claim.” Id.
In sum, MGM shall produce the documents Med Flight requested subject to the above
modifications and the parties’ agree confidentiality order.
IV. CONCLUSION
For the reasons stated above, IT IS, THEREFORE, ORDERED that Med Flight’s
motion to compel is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that on or before September 28, 2017 MGM respond to
Interrogatory 9 and supplement the answers to Interrogatories 10 and 12 subject to the
modifications set forth above and the parties’ agreed upon confidentiality order.
IT IS FURTHER ORDERED that on or before September 28, 2017, MGM produce
the documents requested in Requests for Production 1-5 subject to the modifications set forth
above and the parties’ agreed upon confidentiality order.
IT IS FURTHER ORDERED that Med Flight’s request for expedited consideration
contained within the motion to compel is DENIED as moot.
____________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
Order Granting in Part Plaintiff’s
Motion to Compel
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