Fernandez v. State of North Dakota
Filing
106
ORDER by Magistrate Judge Charles S. Miller, Jr. finding as moot 84 Motion for Hearing; granting in part 91 Motion to Clarify Scheduling Order and 92 Motion to Exceed the Number of Interrogatories Plaintiff May Serve On Defendants; granting 93 Motion for Leave to Depart from the Obligation of D.N.D. Civ. L.R. Rule 37.1(B). Each side shall be permitted to serve a total of 50 interrogatories. (BG) Distributed on 12/9/2013. (rh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Kevin Fernandez,
Plaintiff,
vs.
State of North Dakota, et. al.,
Defendants.
)
)
)
)
)
)
)
)
)
ORDER
Case No. 1:12-cv-161
On September 3, 2013, Plaintiff Kevin Fernandez (“Fernandez”) filed a “Motion for
Telephonic Conference with Magistrate Pursuant to Rule D.N.D. Civ. L.R. 37.1(B).” October 24,
2013, he filed a “Motion to Clarify Scheduling Order Doc. #40,” a “Motion to Exceed the Number
of Interrogatories Plaintiff May Serve On Defendants,” and Motion for Leave to Depart from the
Obligation of D.N.D. Civ. L.R. Rule 37.1(B).” For the reasons set forth below, the “Motion for
Telephonic Conference with Magistrate Pursuant to Rule D.N.D. Civ. L.R. 37.1(B)” is deemed
moot, the “Motion for Leave to Depart from the Obligation of D.N.D. Civ. L.R. Rule 37.1(B)” is
granted, and the motions “ to Clarify Scheduling Order Doc. #40” and “Exceed the Number of
Interrogatories Plaintiff May Serve On Defendants” are granted in part.
I.
BACKGROUND
Paragraph 9 of the court’s March 29, 2013, scheduling order provides in relevant part that
“[e]ach party shall serve no more than 25 interrogatories, including subparts.” (Docket No. 40).
Interpreting this mean that he could serve 25 interrogatories on each defendant, Fernandez served
176 interrogatories in total on defendants: 22 on the State, 25 on Defendant Steve Foster; 21 on
Defendant Patrick Branson; 25 on Defendant Robyn Schmalenberger; 22 on Defendant Leann K.
1
Bertsch; 16 on Defendant Sean Conway; 12 on Defendant Patrick Ross; 12 on Defendant Marc
Schwehr; and 21 on the Department of Corrections and Rehabilitation (“DOCR”).1 Defendants
objected on the grounds that the court’s scheduling limits the number of interrogatories to 25 per
side.
On October 24, 2013, Fernandez filed motions seeking clarification on the number of
interrogatories he is permitted to serve and otherwise requesting leave to serve up to 25
interrogatories on each defendant. He avers:
The Plaintiff is a pro se incarcerated litigant appearing in in forma pauperis.
He has no ability to investigate or discovery facts except by way of discovery.
Initially, Defendants answered critical interrogatories and requests for production of
documents stating they had no contract with Nevada, had not accepted Plaintiff for
transfer via the Interstate Corrections Compact, and had only done the State of
Nevada a favor in accepting Plaintiff as a transfer.
Plaintiff had to use twenty five interrogatories, and file a new action for
breach of contract against the State of Nevada, to get Defendants to finally admit
there was a contract between Nevada and North Dakota. However, because now
North Dakota contests the validity of the contract ant it does not control Plaintiff’s
transfer, Plaintiff had serve additional interrogatories on Defendants. However,
Plaintiff’s interrogatories served to date does not exceed those allowed by FRCP
33(a).
***
Plaintiff needs to be able to serve the twenty five interrogatories on each
party because this is the only means of obtaining the evidence he needs. Defendants
control all of the evidence in this action and the only way Plaintiff can obtain it is
through discovery. Public policy in 42 USC § 1983 cases dictates a liberal discovery
because these cases have special import to be resolved by a determination of the
truth. Public confidence in the system, and government, are threatened in 42 USC
§ 1983 cases if a liberal discovery is not allowed.
***
Additionally, Plaintiff alleges three difference claims involving different
Defendants. Therefore Plaintiff needs the total of twenty five interrogatories to
prove all of his claims. Additionally, Defendants have changed their responses why
they sent Plaintiff back to Nevada. This caused Plaintiff to have to serve an
additional series of questions. Therefore, the Plaintiff has made a showing of good
1
According to defendants, they have received a total of 983 discovery requests (698 requests for
admissions, 109 requests for production, and 176 interrogatories) from Fernandez to date.
2
cause for why he needs to have all twenty five interrogatories available to EACH
separate defendant. Plaintiff’s need is caused by Defendants initial evasive and
deceptive responses, the number of claims in the complaint (9), and defendants
changing of defenses. This is a showing of good cause.
Additionally, Plaintiff’s need falls squarely within the limits allowed by
FRCP 26(b)(2). The FRCP 33(a)(1) allows up to twenty five interrogatories to be
served on each separate Defendant. Therefore, Plaintiff is only asking for the same
Interrogatories allowed to any other litigant, and his request could not be deemed as
overly burdensome since the rules allows as much anyway.
Finally, the Court has never made the findings allowing Plaintiff to utilize the
number of interrogatories would be overly burdensome or unduly expensive. When
a Court moves to restrict such discovery, such a showing should be made.
(Docket No. 92) (errors in original) (internal citations omitted).
Defendants filed responses in opposition to Fernandez’s motions on October 25, 2013. They
take the position that, for all practical purposes, an interrogatory to the DOCR is the equivalent to
an interrogatory to each individual defendant, thus eliminating the need for an inmate to serve 25
interrogatories on each individual defendant. Specifically, they aver:
The Court also wisely imposed the limitation knowing that the Department
of Corrections and Rehabilitation (DOCR) and the Individual Defendants are, for all
practical purposes, one party. This means that an interrogatory to the DOCR is
equivalent to an interrogatory to each Individual Defendant, eliminating the need for
an inmate to serve 25 separate interrogatories on each Individual Defendant. This is
because a response by DOCR to an interrogatory includes the information known by
and available to each Individual Defendant, as well as other DOCR employees. Thus,
by serving 25 interrogatories to DOCR, Plaintiff is in essence serving 25
interrogatories on each Individual Defendant. This is evidenced by Plaintiff’s own
interrogatories.
In his First Request for Interrogatories to Defendant State of North Dakota,
Plaintiff instructed the State “to furnish such information that [it has] available to [it],
not merely the information or documents that [it has] personal knowledge of. This
includes any information or documents in the possession of the agents, employees,
attorneys, investigators, etc., for the answering party.” Thus, the interrogatories were
directed to each and every Defendant, not just the State. In its response, the State
explained the scope of its response: “Because the individual Defendants are
employees of the State of North Dakota, the State of North Dakota’s responses
include information known to and available to the Individual Defendants.”
By limiting inmates to “no more than 25 interrogatories,” the Court also
prevents inmates from fabricating parties or adding unnecessary parties to increase
3
the number of permitted interrogatories. For example, under Plaintiff’s distorted
reading of the Scheduling Order, an inmate could triple the number of potential
interrogatories by naming as defendants the State of North Dakota, the DOCR, and
the North Dakota State Penitentiary (NDSP) instead of just the State, despite the fact
DOCR and NDSP are legally and factually the equivalent of the State.2 Similarly,
an inmate could endlessly multiply the number of potential interrogatories by naming
as defendants DOCR staff that had little or nothing to do with the alleged violation
(as Plaintiff did in this case). It is contrary to sound public policy and Rules 1 and 26
of the Federal Rules of Civil Procedure to adopt scheduling orders that encourage the
addition of duplicative and unnecessary parties and repetitive, burdensome, and
fruitless discovery.
(Docket No. 94). In the event that the court were to conclude that Fernandez has a legitimate need
to serve in excess of 25 interrogatories, they ask that he be limited to 10 additional interrogatories
to be served on the DOCR.
Fernandez filed replies to defendants’ aforementioned responses on November 11, 2013.
He reiterates his position that he is entitled to serve 25 interrogatories on each named defendant.
In so doing, he avers: (1) the State, the DOCR, and their employees are separate and distinct
entities; (2) he has not had an adequate opportunity to conduct discovery because of changes in
defendants’ position; (3) he has demonstrated a need to serve the additional interrogatories; and (4)
the limit of thirty-five interrogatories as proposed by defendants is insufficient.
III.
DISCUSSION
Fed. R. Civ.P. 33(a)(1) provides in relevant part that a “ a party may serve on any other party
no more than 25 written interrogatories, including all discrete subparts.” A literal reading of this
rule permits any party to serve up to 25 interrogatories on any other party. See Fed.R.Civ.P.
33(a)(1); see also St. Paul Fire and Marine Ins. Co. v. Birch, Stewart, Kolasch & Birch, LLP, 217
F.R.D. 288, 289 (D. Mass. 2003) (“Under the plain terms of Rule 33(a), each defendant could,
without leave of court, serve 25 interrogatories on the plaintiff.”); Madison v. Nesmith, 2008 WL
4
619171, *3 (N.D.N.Y.2008) (“Under Rule 33, plaintiff was entitled to serve up to 25 Interrogatories
on each of the three defendants.”). That being said, the court “ is given wide discretion to enlarge,
or place limitation upon, the number of interrogatories in any given case.” Ybanez v. Milyard,
10–cv–2234–RBJ–MJW, 2012 WL 1936557 at * 2 (D. Colo. May 29, 2012); see also United States
v. Louisiana, No. 11–470–JJB, 2012 WL 832295 at *4 (M.D. La. March 9, 2012) (“Rule 26(b)(2)(A)
expressly permits a court to ‘alter the limits in these rules on the number of ... interrogatories’ as
well as ‘limit the number of requests under Rule 36.’ These Rules provide relatively little guidance
to judges on the standards to be employed. This grants them wide latitude wide latitude to make
discovery rulings based on their impressions on a variety of topics . . . .”).
Given the manner in which his interrogatories were apparently framed and fact that
defendants are all being represented by the same attorney, the court is inclined in this instance to
consider defendants as one party for purposes of the 25-interrogatory limit. See Vinton v. Adams
Aircraft Ind., Inc.,232 F.R.D. 650, 664 (D. Colo 2005) (citing 8A Wright, Miller and Marcus,
Federal Practice and Procedure, Civil 2d § 2168.1, for the proposition that nominally separated
parties may be considered one party for purposes of the 25-interrogatory limit); cf. Perez v. Wis.
Dept. of Corr., No. No. 04-C-1062, 2007 WL 1062247 at *1 (E.D. Wis. April 5, 2007) (concluding
that, for purposes of computing the number of interrogatories serve, its local rules contemplated that
parties represented by one attorney or agency are regarded as one party). However, given the nature
of his claims and his limited means of conducting discovery, the court, in its discretion, is also
inclined to permit him to serve an additional twenty-five additional interrogatories, or fifty
interrogatories in total. The allowance of twenty-five additional interrogatories will afford
Fernandez ample opportunity for discovery and simultaneously address defendants’ concerns
5
regarding abuse.
III.
CONCLUSION
The “Motion for Telephonic Conference with Magistrate Pursuant to Rule D.N.D. Civ. L.R.
37.1(B)” (Docket No. 84) is deemed MOOT.
The "Motion for Leave to Depart from the
Obligation of D.N.D. Civ. L.R. Rule 37.1(B)” (Docket No. 93) is GRANTED. The “Motion to
Clarify Scheduling Order Doc. #40"(Docket No 91) and “Exceed the Number of Interrogatories
Plaintiff May Serve On Defendants” (Docket No. 92) are GRANTED IN PART. Each side shall
be permitted to serve a total of 50 interrogatories.
Dated this 9th day of December, 2013.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?