Metzgar et al v. U.A. Plumbers and Steamfitters Local No. 22 Pension Fund et al

Filing 83

DECISION and ORDER denying 79 Motion for Reconsideration. Signed by Hon. Leslie G. Foschio on 10/4/2017. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
GARY METZGAR, RICHARD MUELLER,
KEVIN REAGAN, RONALD REAGAN,
CHARLES PUGLIS, SHERWOOD NOBLE,
DANIEL O’CALLAGHAN,
Plaintiffs,
v.

DECISION
and
ORDER
13-CV-85V(F)

U.A. PLUMBERS AND STEAMFITTERS LOCAL
NO. 22 PENSION FUND,
BOARD OF TRUSTEES OF U.A. PLUMBERS AND
STEAMFITTERS LOCAL NO. 22 PENSION FUND, and
DEBRA KOROPOLINSKI, in her capacity as Plan
Administrator, for the U.A. Plumbers and Steamfitters
Local 22 Pension Fund,
Defendants.
________________________________________
APPEARANCES:

CHRISTEN ARCHER PIERROT, ESQ.
Attorney for Plaintiffs
3959 N. Buffalo Road
Orchard Park, New York 14127
COLLIGAN LAW LLP
Attorneys for Plaintiffs
MATTHEW K. PELKEY, of Counsel
12 Fountain Plaza, Suite 600
Buffalo, New York 14202
BLITMAN & KING
Attorneys for Defendants
JULES L. SMITH, of Counsel
The Powers Building
16 West Main Street, Suite 207
Rochester, New York 14614

In this action alleging pension cut-backs in violation of ERISA, Plaintiffs move for
reconsideration of the court’s Decision and Order, Dkt. 77, filed August 29, 2017 (“the
“D&O”) insofar as it granted Defendants’ motion to compel Plaintiffs to respond fully to
Defendants’ Interrogatory No. 4 (“Interrogatory No. 4”), and to show cause why
sanctions should not be awarded to Defendants in accordance with Fed.R.Civ.P.

37(b)(2)(C) based on Plaintiffs’ refusal to fully respond to Interrogatory No. 4 and agree
to schedule Plaintiffs’ depositions (“Plaintiffs’ motion”). Dkt. 79. Specifically, Plaintiffs
assert that the D&O erred in finding that Plaintiffs’ objections to Interrogatory No. 4 were
untimely based on Plaintiffs’ failure to oppose Defendants’ prior cross-motion to compel,
Dkt. 63, filed March 29, 2017, seeking to compel, inter alia, Plaintiffs’ responses to
Interrogatory No. 4 resulting in the court’s Order, Dkt. 67, filed April 24, 2017 (“the April
24, 2017 Order” or “the Order”), granting Defendants’ motion as without opposition, and
directing Plaintiffs’ responses by served not later than May 5, 2017. See Dkt. 67.
Because of Plaintiffs’ failure to comply with the April 24, 2017 Order particularly with
respect to Interrogatory No. 4, Defendants again moved, on July 26, 2017, to compel
Plaintiffs’ compliance with the Order, specifically, that Plaintiffs provide information for
Plaintiffs’ pre-retirement employment and agree to a schedule for depositions of
Plaintiffs. (See Dkt. 69, ¶ 25(b)). In addition to presenting arguments in support of
Plaintiffs’ cross-motion to consolidate Plaintiffs recently filed a motion to consolidate 17CV-726V(F) with the instant case (Dkt. 72), to stay discovery, and for a protective order,
Plaintiffs also opposed Defendants’ motion to compel Plaintiffs’ complete responses to
Interrogatory No. 4 contending, based on Plaintiffs’ objections, that Defendants were in
possession of the requested information pertaining to Plaintiffs’ employment prior to
taking early retirements and related pensions, Dkt. 72 ¶ 34, and that the interrogatory
seeks irrelevant information. Id. ¶ 35. As noted, the D&O found Plaintiffs’ objections,
which had been asserted in Plaintiffs’ answers to Interrogatory No. 4 served on May 5,
2017 in compliance with the April 24, 2017 Order, “belated and ineffective,” D&O at 12,
given Plaintiffs’ failure to oppose Defendants’ prior cross-motion (see Dkt. 66 ¶ 4) to

2 

compel which had been granted by the April 24, 2017 Order and which Plaintiffs did not
appeal nor seek reconsideration.
In support of Plaintiffs’ motion, Plaintiffs assert the court should not have
determined in the D&O that Plaintiffs’ objections to Interrogatory No. 4 as stated in
Plaintiffs’ answers were ineffective based on a distinction held by Plaintiffs’ counsel
between a motion to compel discovery only and a motion to compel discovery including
a request to find the responding party waived objections pursuant to Fed.R.Civ.P.
33(b)(4) (untimely objections waived unless excused by the court). See Dkt. 79-1 ¶¶ 3,
5. Plaintiffs also rely on the fact that in Defendants’ cross-motion to compel (Dkt. 64)
resulting in the April 24, 2017 Order, Defendants did not specifically raise Plaintiffs’
failure to timely object to Interrogatory No. 4. See Dkt. ¶ 4. Plaintiffs also argue that the
April 24, 2017 Order did not determine that Plaintiffs had waived any potential
objections to Interrogatory No. 4. Id. ¶ 8. Plaintiffs further contend that in seeking to
amend the Scheduling Order Plaintiffs asserted Plaintiffs’ counsel, based on workload
and personal considerations, required additional time to prepare and serve Plaintiffs’
answers to Defendants’ Interrogatories. See Dkt. 79-1 ¶ 13 (referencing Dkt. 63, ¶¶ 2,
7). However, in requesting the court compel Plaintiffs’ responses to Defendants’
discovery requests, Defendants did state Plaintiffs had failed to “timely” respond, Dkt.
64-1 ¶ 5, and Plaintiffs do not contend that Plaintiffs served any responses to
Defendants’ Interrogatories including timely served objections, i.e., within 30 days of
Defendants’ service of Interrogatory No. 4 as required by Fed.R.Civ.P. 33(b)(2) (“Rule
33(b)(2)”). Specifically, Plaintiffs’ answers were due March 27, 2017 and Plaintiffs’
motion to amend the Scheduling Order was filed March 29, 2017 (Dkt. 63). It is wellestablished that an unexcused failure to comply with Rule 33(b)(2) absent an extension
3 

of time to respond by stipulation or court order results in a waiver of any potential
objections. See Baicker McKee, Janssen, Corr, FEDERAL RULES OF CIVIL PROCEDURE
(Thomson Reuters 2017) at 860 (citing caselaw). Plaintiffs point to no such stipulation
or court order extending Plaintiffs’ time to answer Defendants’ Interrogatories in this
case. Although Plaintiffs claim to have been “shocked” by Defendants’ April 6, 2017
cross-motion to compel, Plaintiffs neglected to oppose it, as noted and relied upon by
April 24, 2017 Order. If Plaintiffs genuinely believed Defendants had agreed to extend
the period for Plaintiffs’ answers to Defendants’ Interrogatories thereby enlarging the
time for Plaintiffs’ to assert timely objections to Interrogatory No. 4, it was incumbent
upon Plaintiffs to raise this as a ground in opposition to Defendants’ cross-motion to
compel at that time. Nor could Plaintiffs reasonably believe that by granting Plaintiffs’
request to amend the scheduling order to extend that time within which to complete
discovery in the case the court thereby also excused, nunc pro tunc, Plaintiffs’ failure to
timely object to Interrogatory No. 4. In short, Plaintiffs’ apparent belief that by amending
the Scheduling Order to extend the period for discovery to be completed the court
thereby also enlarged the time for Plaintiffs to serve objections, which had then expired,
was mistaken. In these circumstances the court can hardly be faulted for concluding in
the D&O that Plaintiffs’ failure to oppose Defendants’ cross-motion acknowledged
Plaintiffs’ responses were, absent a stipulation by Defendants or court order as
permitted by Rule 30(b)(2), overdue and that any objections, in accordance with Rule
30(b)(2), had thus been waived.
None of the cases relief upon by Plaintiffs, see Dkt. 5, 10 (citing Senat v. City of
New York, 255 F.R.D. 338, 339 (E.D.N.Y. 2009); Zakre v. Norddeutsche Landesbank
Girozentrale, 2003 WL 22208364, at *1 (S.D.N.Y. Sept. 23, 2003); Limu Co., LLC v.
4 

Burling, 2013 WL 1482760, at *1 (M.D. Fla. Apr. 11, 2013); Callaway Golf Co. v. Corp.
Trade Inc., 2011 WL 1642377, at *2 (S.D.N.Y. Apr. 24, 2011)), supports Plaintiffs’
contention that any finding by the court that a responding party’s failure to comply with
Rule 33(b)(2) results in a waiver of objections must be specifically requested in a motion
to compel. See Dkt. 79-1 ¶ 5. Rather, carefully read, these cases are simply examples
of the court’s authority under Rule 30(b)(2) to excuse a responding party’s failure to
timely respond to outstanding discovery requests without also waiving objections where
the circumstances such as the exercise of reasonable diligence by the answering party
to comply with a requesting party’s extensive discovery requests warranted such
excuse. See, e.g., Calloway Golf Co., 2011 WL 1642377, at *2 (responding party did
not waive objections where responses to numerous discovery requests were provided
albeit belated); Zakre, 2003 WL 22208364, at *1 (responding party excused from timely
compliance because of difficulties in timely responding to large number of requests).
Plaintiffs’ argument, Dkt. 79-1 ¶ 7; Dkt. 82 ¶ 4, that unless the requesting party
specifically raises the opponent’s failure to timely serve objections, such failure should
be overlooked by the court on a motion to compel is also without merit. Rule 33(b)(4) is
unequivocal – absent a stipulation for an exclusion of time to respond or a judicial
determination that the delay in response was excusable, objections are waived.
Plaintiffs cite to no authority in support of Plaintiffs’ novel proposition, and the court’s
research reveals none.
In any event, in the D&O, the court found that Plaintiffs’ objections lacked merit,
as the pre-employment information requested by Interrogatory No. 4 was relevant to
both Plaintiffs’ claims and Defendants’ defenses, and the fact that a requesting party
possesses requested information is no bar to discovery of such information absent
5 

special circumstances. See Dkt. 77 at 1-13. Significantly, Plaintiffs’ motion does not
request reconsideration of that finding. Therefore, the court concludes that the D&O did
not “overlook controlling authority or factual information that could reasonably alter the
decision in question,” as required for reconsideration on the issues addressed by
Plaintiffs. Roth v. 2810026 Canada Limited Ltd., 2017 WL 1337572, at *2 (W.D.N.Y.
Apr. 12, 2017) (citing Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) and
caselaw). Nor do Plaintiffs points to anything to demonstrate that failure to reconsider
the D&O on the only issue addressed by Plaintiffs’ motion would produce an unjust
result, and Plaintiffs do not so contend. Id. citing Kolel Beth Yechiel Mechil of Tartikov,
Inc. Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013)).

CONCLUSION

Based on the foregoing, Plaintiffs’ motion (Dkt. 79) is DENIED.
SO ORDERED.
/s/ Leslie G. Foschio  
_________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: October 4, 2017
Buffalo, New York   

6