Trimbur et al v. Norfolk Southern Corporation et al

Filing 68

OPINION AND ORDER denying 56 Motion to Compel. Signed by Magistrate Judge Norah McCann King on 9/23/2014. (pes1)

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
Renee K. Trimbur, the Kyron Tool & Machine Co., Inc., and C4R’S,
LLC, (“plaintiffs”) filed this action against Norfolk Southern
Corporation (“NSC”) and Norfolk Southern Railway Company (“NSRC”)
(collectively “defendants”), 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.

On August 14, 2014, the Court

granted in part and denied in part plaintiffs’ June 11, 2014 motion to
compel discovery.

Opinion and Order, Doc. No. 52.

Specifically, the

Court denied, without prejudice to renewal in a motion to be filed no
later than August 26, 2014, plaintiffs’ motion to the extent that the
motion sought to compel response to interrogatories:
Plaintiffs have not provided the Court with sufficient
information to determine what interrogatories are at issue,
let alone to determine whether the discovery sought is
relevant. The Court will not sift through defendants’
responses to plaintiffs’ interrogatories in an attempt to

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determine the particular response or responses to which
plaintiffs may object or which, if any, responses were
deficient.
Id., at PAGEID# 729-30.

This matter is now before the Court

Plaintiffs’ Renewed Motion to Compel Defendants to Respond to
Interrogatories (“Plaintiffs’ Motion”), Doc. No. 56, which was filed
on August 26, 2014.

Defendants oppose Plaintiffs’ Motion.

Defendants’ Response, Doc. No. 59.
Plaintiffs’ Reply, Doc. No. 65.

Plaintiffs have filed a reply.

For the reasons that follow,

Plaintiffs’ Motion is DENIED.
Rule 37 of the Federal Rules of Civil Procedure authorizes a
motion to compel discovery when a party fails to provide a proper
response to an interrogatory under Rule 33.

Fed. R. Civ. Pro.

37(a)(3)(B). However, the party moving to compel discovery must
certify that it “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).

See also S.D. Ohio Civ. R. 37.2.
Plaintiffs propounded their interrogatories on August 2, 2013,
and contend that defendants have not adequately responded to those
interrogatories. Plaintiffs’ Motion, p. 2.

Plaintiffs’ Motion seeks

to compel response or supplemental response to nine interrogatories
propounded by plaintiff Trimbur, to 15 interrogatories propounded by
plaintiff The Kyron Tool & Machine Co., Inc., and to 17
interrogatories propounded by plaintiff C4R’s LLC.

Plaintiffs’

counsel has certified that extrajudicial measures have been undertaken

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in an effort to resolve this discovery dispute prior to filing
Plaintiffs’ Motion.

See Plaintiffs’ Motion, Exhibit A.

This Court

disagrees.
Plaintiffs’ only attempt to resolve the current discovery dispute
amounts to a letter dated November 21, 2013, in which plaintiffs
asserted general objections to defendants’ discovery responses.

See

Plaintiffs’ Motion, Exhibit A; Defendants’ Response, Exhibit 8;
Plaintiffs’ Reply, pp. 1-3.

Plaintiffs have not indicated that they

made any effort to resolve the current dispute between November 2013
and the time they filed Plaintiffs’ Motion on August 26, 2014.
Rather, plaintiffs seem to suggest that the Court’s resolution of
earlier disputes satisfies their obligation to utilize extrajudicial
means to resolve discovery disputes. Plaintiffs’ Reply, pp. 2-3 (“At
this point in the proceedings, after judicial intervention has been
required to obtain Defendants’ compliance with all other discovery
requests, Loc.R. 37 has been satisfied.”). However, the existence and
resolution of earlier disputes have no bearing on whether counsel have
exhausted all extrajudicial means for resolving their current
differences.

See S.D. Ohio Civ. R. 37.1 (“Objections, motions,

applications, and requests relating to discovery shall not be filed in
this Court under any provision in Fed. R. Civ. P. 26 or 37 unless
counsel have first exhausted among themselves all extrajudicial means
for resolving the differences.”).

Certainly, the exhaustion

requirement requires, at a minimum, that counsel have discussed the
particular issues presented to the court.

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Moreover, this Court is not

convinced that the parties’ dispute has reached impasse; it appears to
this Court that further discussion between counsel regarding
plaintiffs’ actual concerns could resolve many of the issues raised in
Plaintiffs’ Motion. The fact that the Court, in its August 14, 2014
Opinion and Order, required that any renewed motion be filed by August
26, 2014 cannot and should not be read as exempting plaintiffs from
attempting to resolve, extrajudicially, their current, specific
discovery concerns.
Accordingly, Plaintiffs’ Motion, Doc. No. 56, is DENIED.

September 23, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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