Trimbur et al v. Norfolk Southern Corporation et al
Filing
138
OPINION AND ORDER denying 125 Motion for Sanctions. Signed by Magistrate Judge Norah McCann King on 9/28/2015. (pes)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RENEE K. TRIMBUR, et al.,
Plaintiffs,
vs.
Civil Action 2:13-cv-0160
Judge Sargus
Magistrate Judge King
NORFOLK SOUTHERN CORPORATION,
et al.,
Defendants.
OPINION AND ORDER
I.
Background
Renee K. Trimbur, the Kyron Tool & Machine Co., Inc., and C4R’S,
LLC, filed this action against Norfolk Southern Corporation and
Norfolk Southern Railway Company, asserting claims of negligence,
gross negligence, negligence per se, strict liability, nuisance, and
trespass in connection with a train derailment adjacent to property
owned or leased by the plaintiffs.
Complaint, ECF 2.
Several of the
derailed cars ruptured, causing explosions and fires and releasing
allegedly hazardous materials into the air and soil.
Id. at ¶¶ 8, 10.
Plaintiffs claim that the release of these materials contaminated
their property and other properties near the track, including an
embankment controlled by one or both defendants.
Id. at ¶ 12.
Plaintiffs allege that, although defendants remediated these
1
properties, plaintiffs’ property remains unusable.
Id. at ¶ 13.1
On November 21, 2014, plaintiffs filed a second renewed motion to
compel responses to interrogatories, including Trimbur’s
Interrogatories Nos. 2 and 3, and C4R’s LLC’s Interrogatories Nos. 16,
17, and 18, which were originally propounded on August 2, 2013.
Plaintiffs’ Second Renewed Motion to Compel, ECF 93, p. 2.
Plaintiffs
argued that, in response to several interrogatories, including
Trimbur’s Interrogatories Nos. 2 and 3, defendants improperly referred
to documents instead of providing narrative answers.
Plaintiffs
specifically argued that defendants failed to comply with Rule the
Federal Rules of Civil Procedure because they failed to specify the
records to be reviewed in detail sufficient to enable plaintiffs to
locate and identify them as readily as could defendants.
Id. at p. 7.
The Court agreed and concluded that defendants had failed to “specify
the records to be reviewed ʽin sufficient detail to enable the
interrogating party to locate and identify them as readily as the
responding party could.’”
Opinion and Order, ECF 112, pp. 14-17
(quoting Fed. R. Civ. P. 33(d)(1)).
The Court therefore ordered
defendants to “supplement their responses to [numerous
interrogatories, including] Trimbur’s Interrogatories Nos. 2 and 3.”
Id. at p. 17.
C4R’s LLC’s Interrogatories Nos. 16, 17, and 18 sought
1
On August 10, 2015, the Court granted in part and denied in part defendants’
Motion for Summary Judgment, ECF 90. Opinion and Order, ECF 133.
Specifically, the Court denied the motion in connection with plaintiffs’
claims of private qualified nuisance and certain negligence claims, and
plaintiffs’ trespass claims. Id.
2
information related to expenses incurred by defendants in connection
with the cleanup and remediation after the train derailment.
Defendants objected to these requests on the basis that they sought
information related to both the north and south embankments.
p. 18; ECF 99, p. 20.
ECF 59,
The Court noted its previous determination
“that discovery related to the contamination and remediation of the
south embankment is relevant to plaintiffs’ claims,” and ordered
defendants to “respond to C4R’S LLC’s Interrogatories Nos. 16, 17, and
18.”
Opinion and Order, ECF 112, p. 17.
Defendants were required to
respond to or supplement their responses within twenty-eight (28) days
of the Court’s January 16, 2015 order.
Id. at pp. 22-23.
This matter is now before the Court on Plaintiffs’ Motion to
Impose Sanctions (“Plaintiffs’ Motion”), ECF 125.
Plaintiffs argue
that defendants “have failed to comply with this Court’s January 16,
2015 Opinion and Order compelling them to supplement their responses
to Plaintiff C4R’S LLC’s [] Interrogatories Nos. 16, 17, and 18 and
Plaintiff Renee K. Trimbur’s Interrogatories Nos. 2 and 3.”
1.
Id. at p.
Plaintiffs seek the following sanctions:
(1) An order establishing that, for the purposes of this
action, as a direct consequence of the train derailment,
spillages, explosions, fires, and inadequate remediation,
people who spent time in the area (which includes
Plaintiffs’ property) impacted by the above became ill or
suffered medical issues;
(2) An order prohibiting Defendants from contesting the
Plaintiffs’ claims that, as a direct consequence of the
train
derailment,
spillages,
explosions,
fires,
and
inadequate remediation, people who spent time in the area
(which includes Plaintiffs’ property) impacted by the above
became ill or suffered medical issues;
3
(3) An order dismissing Plaintiffs’ Motion for Summary
Judgment as it relates to any claims that individuals who
spent time in the area (which includes Plaintiffs’
property) impacted by the train derailment, spillages,
explosions, fires, and inadequate remediation became ill or
suffered medical issues;
(4) An order finding Defendants to be in contempt of court,
and the imposition of any sanctions this Court deems
appropriate for such contempt;
(5) Payment of any and all expenses incurred by Plaintiffs,
including attorneys’ fees, caused by the failure of
Defendants to comply with this Court’s order; and
(6) Any other relief that this Court deems equitable.
Id. at pp. 1-2.
Defendants oppose Plaintiffs’ Motion, Defendants’
Response, ECF 131, and plaintiffs have filed a reply.
Reply, ECF 132.
II.
Plaintiffs’
This matter is now ripe for consideration.
Standard
Rule 37(b) of the Federal Rules of Civil Procedure authorizes the
imposition of sanctions in connection with a party’s “fail[ure] to
obey an order to provide or permit discovery.”
37(b)(2)(A).
Fed. R. Civ. P.
A court may issue such orders as are just, including,
inter alia, “treating as contempt of court the failure to obey any
order except an order to submit to a physical or mental examination.”
Fed. R. Civ. P. 37(b)(2)(A)(vii).
“Contempt proceedings enforce the
message that court orders and judgments are to be complied with in a
prompt manner.”
Elec. Workers Pension Trust Fund v. Gary’s Elec.
Serv. Co., 340 F.3d 373, 378-79 (6th Cir. 2003) (citing NLRB v.
Cincinnati Bronze, Inc., 829 F.2d 585, 590 (6th Cir. 1987)).
To hold
a party in contempt, the movant must “prove by clear and convincing
evidence that the party to be held in contempt violated a court
4
order.”
United States v. Conces, 507 F.3d 1028, 1041-42 (6th Cir.
2007) (citing Grace v. Ctr. for Auto Safety, 72 F.3d 1236, 1241 (6th
Cir. 1996)).
379.
See also Elec. Workers Pension Trust Fund, 340 F.3d at
“Once the movant establishes his prima facie case, the burden
shifts to the contemnor who may defend by coming forward with evidence
showing that he is presently unable to comply with the court's order.”
Elec. Workers Pension Trust Fund, 340 F.3d at 379 (emphasis in
original) (citing United States v. Rylander, 460 U.S. 752, 757
(1983)).
“To meet this production burden in this circuit ‘a defendant
must show categorically and in detail why he or she is unable to
comply with the court's order.’”
Id. (quoting Rolex Watch U.S.A.,
Inc. v. Crowley, 74 F.3d 716, 720 (6th Cir. 1996)).
A court must also
consider whether the party “‘took all reasonable steps within [his]
power to comply with the court's order.’”
Id. (quoting Peppers v.
Barry, 873 F.2d 967, 969 (6th Cir. 1989)).
III. Discussion
Plaintiffs argue that defendants failed to comply with the
Court’s January 16, 2015 discovery order, which required defendants to
“supplement their responses to . . . Trimbur’s Interrogatories Nos. 2
and 3” and “respond to C4R’S LLC’s Interrogatories Nos. 16, 17, and
18.”
Opinion and Order, ECF 112, p. 17, 22-23.
As noted supra,
defendants produced documents in response to numerous interrogatories,
but failed to “specify the records to be reviewed ʽin sufficient
detail to enable the interrogating party to locate and identify them
as readily as the responding party could.’”
5
Opinion and Order, ECF
112, pp. 14-17 (quoting Fed. R. Civ. P. 33(d)(1)).
The Court ordered
defendants to “supplement their responses to [these interrogatories].”
Id. at p. 17.
Trimbur’s Interrogatories Nos. 2 and 3 were included in
the list of interrogatories that required supplementation.
Id.
Although defendants supplemented their responses on February 13, 2015,
plaintiffs argue that defendants’ supplementation failed to comply
with the Court’s January 16, 2015 discovery order.
Defendants originally responded to Trimbur’s Interrogatories Nos.
2 and 3 as follows:
Interrogatory No. 2: If any person in Interrogatory 1 above
or any other person, based on his or her presence at the
area defined as the derailment site during the post
derailment period, contacted you regarding any medical
issue or illness, informed you of any medical issue or
illness, requested or took sick or medical leave, filed any
lawsuit, or filed any workman’s compensation or disability
claim, then, with regard to any such contact, information,
taking of sick or medical leave, or filing: (a) identify
the person, (b) the type of claim, request, demand, or
lawsuit, and (c) the date of such.
Answer Interrogatory No. 2: Objection.
Vague, ambiguous.
See also objections and response to No. 1 above.
Without
waiving
these
objections,
and
subject
thereto,
see
Defendant’s response to Request for Production #15.
Interrogatory No. 3: Identify any person who resided in,
worked in, or was employed in the area defined as the
derailment site who reported or notified you of any illness
or medical issues during the post-derailment period.
Answer Interrogatory No. 3: Objection.
responses to Nos. 1 & 2 above.
ECF 93-6, pp. 21-22.
See objections and
Defendants supplemented their responses to
Trimbur’s Interrogatories Nos. 2 and 3 as follows:
Answer Interrogatory No. 2: Without waiving all prior
objections set forth in Defendants’ previous Response, and
subject thereto, Defendant is not aware of any such claims
6
related to alleged exposure to chemicals or other materials
at the derailment site made by either Norfolk Southern
personnel or first responders who were present at the
derailment site.
Further responding, Defendant is not
aware of any claimant (including Plaintiff Renee Trimbur)
who has submitted a claim in which they provided medical
records supporting a causal connection between any medical
issue or illness and the derailment other than claimant
Milton Jones who allegedly incurred flash burns which may
have resulted from his proximity to the derailment site
when one or more of the tank cars caught fire.
. . .
Answer Interrogatory No. 3: Without waiving all prior
objections set forth in Defendants’ previous Response, and
subject thereto, Defendant is not aware of any such claims
related to alleged exposure to chemicals or other materials
at the derailment site made by either Norfolk Southern
personnel or first responders who were present at the
derailment
site.
Further
responding,
please
see
Defendants’ Supplement Response to Trimbur’s Interrogatory
No. 2 above.
Plaintiffs’ Motion, Exhibit A, at PAGEID 5561-62.
Plaintiffs argue
that defendants failed to comply with the Court’s order because these
supplemented responses failed to provide “the identities of any and
all persons who resided in, worked in, or were employed in the area
defined as the derailment site who reported or notified Defendants of
any illness or medical issues during the post-derailment period.”
at pp. 6-7.
Id.
Plaintiffs argue that, rather than answering the
interrogatories, defendants improperly “subdivide[d] any person who
[met] these descriptions into those suffering medical consequences
‘not due to exposure’ and those suffering ‘long-term exposure’ or ‘ongoing exposure.’”
Id.
Defendants argue that, although the Court’s order required
defendants to specify records to be reviewed in response to Trimbur’s
7
Interrogatories Nos. 2 and 3, defendants contends that they never
actually produced documents in response to these interrogatories.
Defendants’ original response to Trimbur’s Interrogatories Nos. 2 and
3 referenced Request for Production No. 15 “only because information
was provided there concerning the lack of claims by Norfolk Southern
personnel and/or first responders.”
Defendants’ Response, pp. 9-10.
Defendants take the position that they complied with the Court’s order
and “re-examined the documents produced to ensure there were no
previously produced documents that were responsive to these
Interrogatories that should be more specifically referenced,” but
found none.
Id. at p. 10.
Defendants nevertheless made supplemental
interrogatory responses, “[e]ven though Defendants were not required
to further respond to these two Interrogatories pursuant to the
Court’s January 16, 2015 Order because there were no documents to
specifically identify.”
Id.
Defendants also argue that Trimbur’s
Interrogatories Nos. 2 and 3 “are overly broad, vague and ambiguous,
and request information which is neither relevant nor reasonably
calculated to lead to the discovery of admissible evidence.”
Id. at
p. 11.
Discovery in this case has been protracted.
and Order, ECF 112, pp. 1-2.
See e.g., Opinion
Plaintiffs’ Second Renewed Motion to
Compel was untimely and plaintiffs failed to establish good cause to
amend the scheduling order to permit the late filing.
7-10.
See id. at pp.
The Court nevertheless considered Plaintiffs’ Second Renewed
Motion to Compel.
With regard to Trimbur’s Interrogatories Nos. 2 and
8
3, as well as 10 other interrogatories, the Court found that
defendants had produced documents in response to the interrogatories
but had failed to specify in sufficient detail the documents that were
responsive to each interrogatory.
Id. at pp. 16-17.
This finding was
based on representations made by plaintiffs; the parties did not
provide defendants’ actual response to Request for Production No. 15
when they briefed Plaintiffs’ Second Renewed Motion to Compel. It is
now clear that defendants never actually produced documents in
response to Trimbur’s Interrogatories Nos. 2 and 3.2 Under these
circumstances, the Court concludes that plaintiffs’ request for
sanctions in connection with defendants’ supplemented response to
Interrogatories Nos. 2 and 3 is without merit.
Plaintiffs next argue that defendants violated the Court’s
discovery order by refusing to produce the information requested by
C4R’S LLC’s Interrogatories Nos. 16, 17, and 18.
As discussed supra,
these interrogatories sought information related to expenses incurred
by defendants in connection with the cleanup and remediation after the
train derailment.
Defendants objected to these requests on the basis
that they sought information related to both the north and south
embankments.
ECF 59, p. 18; ECF 99, p. 20.
2
The Court noted its
Defendants’ response to Request for Production No. 15 reads as follows:
RESPONSE: Objection. See objections set forth in response to Nos.
1 and 11 above, which are incorporated herein by reference as if
fully rewritten.
Without waiving these objections and subject
thereto, Defendant is not aware of any such claims related to
alleged exposure to chemicals or other materials at the
derailment site made by either Norfolk Southern personnel or
first responders who were present at the derailment site.
Defendants’ Response, p. 9.
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previous determination “that discovery related to the contamination
and remediation of the south embankment is relevant to plaintiffs’
claims,” and ordered defendants to “respond to C4R’S LLC’s
Interrogatories Nos. 16, 17, and 18.”
17.
Opinion and Order, ECF 112, p.
Defendants responded as follows:
Interrogatory No. 16: What is the total dollar amount of
Defendants’ expenditures to date with regard to clean up or
remediation efforts?
Answer Interrogatory No. 16: Without waiving all prior
objections set forth in Defendants’ previous Response, to
the best of Defendants’ knowledge, Defendants are not aware
of any particular person or department that has determined
a total dollar amount of Defendants’ expenditures to date
with regard to clean-up or remediation efforts.
Further
responding, please see documents produced in response to
Plaintiffs’ Request for Production of Documents including,
in particular, those Bates stamped as #001132-001207 and
003014-003817.
Please also see invoices produced by SWS
pursuant to subpoena.
Interrogatory No. 17: For any expenditures described in
your answer to Interrogatory No. 16, to whom was each
individual expenditure paid?
Answer Interrogatory No. 17: Without waiving the objections
set
forth
in
Defendants’
prior
Response
to
this
Interrogatory,
all
contractors
and
subcontractors
identified in Defendants’ discovery responses received
payment for their services rendered. By way of information
and belief, this would include, but not be limited to SWS
Environmental Services, URS, Test America, Arcadis, and
CTEH. Further, by way of information and belief, some subcontractors who worked at the derailment site may have been
retained by and paid by a contractor such as SWS. Payment
was also made to the Ohio EPA pursuant to Ohio Revised Code
§3745.12(B).
Further responding, please see Defendants’
Supplemental Response to C4R’S Interrogatory No. 16, above,
which is incorporated here as if fully rewritten.
Interrogatory No. 18: For any expenditures described in
your answer to Interrogatory No. 16, what was the nature or
purpose of each such expenditure (e.g., whether such
expenditure is compensation to third parties, was made in
connection with sampling, testing or assessments, or was
10
made for hauling, diluting, the use of waste sites or for
disposal costs)?
Answer Interrogatory No. 18: Without waiving the objections
set
forth
in
Defendants’
prior
Response
to
this
Interrogatory,
and
subject
thereto,
see
Defendants’
Supplemental Responses to C4R’S, LLC Interrogatories Nos.
16 and 17, which are incorporated here as if fully
rewritten.
Further responding, Defendants believe the
involvement of these entities is generally known to
Plaintiff
through
other
discovery,
including
the
depositions of Michael Connelly and Bryan Martin.
Plaintiffs’ Motion, Exhibit A, at PAGEID 5559-60.
Plaintiffs argue
that defendants’ responses are deficient because defendants failed to
provide information on the total expenditures incurred in connection
with clean up or remediation efforts after the train derailment.
Defendants represent that they attempted “to identify an
accounting summary or some other record that would detail or summarize
the costs of clean-up and remediation,” but that no such accounting
had been performed.
Defendants’ Response, pp. 13-14.
Accordingly,
defendants argue, “without a document or documents summarizing the
costs of clean-up and remediation, it was unduly burdensome to respond
to these requests as it would have been necessary to somehow identify
and then review many invoices.”
Id. at p. 14 (emphasis in original).
Nevertheless, after “considerable additional work . . . , Defendants
were able to create a ‘miscellaneous billing record’ (‘MRB’) and an
‘environmental comprehensive tracking’ record (‘ECT’).”
14-16.
Id. at pp.
Defendants produced these documents to plaintiffs on the day
that they filed Defendants’ Response. Under these circumstances, the
Court concludes that an award of sanctions would be unjust.
11
WHEREUPON Plaintiffs’ Motion to Impose Sanctions, ECF 125, is
DENIED.
September 28, 2015
s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge
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