Quinonez v. IMI Material Handling Logistics Inc. et al

Filing 114

ORDER GRANTING DEFENDANT CLAYCOS MOTIONS TO COMPEL DISCOVERY AND FOR SANCTIONS (DOC. NOS. 101 & 112 ). Signed by Magistrate Judge Caroline H. Gentry on 2/5/24. (pb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION (DAYTON)
PLINIO ALVARADO QUINONEZ,
Plaintiff,
vs.
IMI MATERIAL HANDLING
LOGISTICS, INC., et al.,
Defendants.

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Case No. 3:21-cv-00159
District Judge Walter H. Rice
Magistrate Judge Caroline H. Gentry

ORDER GRANTING DEFENDANT CLAYCO’S MOTIONS TO COMPEL
DISCOVERY AND FOR SANCTIONS (DOC. NOS. 101 & 112)
This action arises from injuries that Plaintiff sustained while working as a laborer
in Vandalia, Ohio. (Complaint, Doc. No. 1, PageID 2-3.) Plaintiff alleges that his injuries
were caused by inadequate training and lack of proper safety equipment. (Id.) Defendant
Clayco, Inc. (“Clayco”), the general contractor for the construction project, has denied
liability for Plaintiff’s injuries. (Answer, Doc. No. 14.)
This matter is now before the Court on Defendant Clayco’s First Motion to
Compel Discovery Responses And [For] Sanctions (“First Motion,” Doc. No. 101) and
also its Second Motion to Compel Discovery Responses And [For] Sanctions (“Second
Motion,” Doc. No. 112). Both motions are well-taken and are GRANTED.
I.

STATEMENT OF FACTS
On July 28, 2022, counsel for Defendant IMI Material Handling Logistics, Inc.

(“IMI”) emailed all parties to propose “a uniform set of discovery.” (Plaintiff’s Exhibit
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A, Doc. No. 103-1, PageID 1271.) Counsel for Clayco did not respond. (See Response in
Opposition to First Motion to Compel, Doc. No. 103, PageID 1268.)
On September 14, 2022, Clayco served Plaintiff with a first set of interrogatories
and requests for production of documents. (Notice, Doc. No. 87.) Pursuant to Rules
33(b)(2) and 34(b)(2)(A) of the Federal Rules of Civil Procedure, Plaintiff was required
to respond or object to those discovery requests within thirty days. Plaintiff did not do so.
Nor did Plaintiff seek an extension of time to respond. (Doc. No. 102, PageID 1262.)
On October 21, 2022, Clayco sent Plaintiff’s counsel a “Golden Rule Letter” 1 that
noted the lack of timely discovery responses and requested that Plaintiff either reply to
the letter or provide discovery responses within five days. (Clayco’s Exhibit B, Doc. No.
101-2.) Plaintiff did not respond. (Doc. No. 102, PageID 1263.)
On January 19, 2023, Clayco’s counsel emailed Plaintiff’s counsel to express an
intent “to resolve [the] discovery dispute without the need for court intervention” and to
ask when Plaintiff would provide discovery responses. (Clayco’s Exhibit C, Doc. No.
101-3, PageID 1259.) Again, Plaintiff did not respond. (Doc. No. 102, PageID 1263.)
On May 10, 2023, District Judge Walter H. Rice conducted a telephone
conference with the parties. Clayco’s counsel informed the Court that Plaintiff had yet to
respond to Clayco’s first set of discovery requests. Counsel for Plaintiff indicated that he
would review the outstanding requests.

The term “golden rule letter,” which Defendant Clayco uses throughout its motions, appears to be a term used in
Missouri state courts for correspondence between parties intended to resolve a discovery dispute through informal
means. See Holliger, Kennedy & Kennedy, LexisNexis Practice Guide: Missouri Pretrial Civil Litigation § 7.26
(LexisNexis Matthew Bender, Rev. Ed.). Compare Fed. R. Civ. P. 37(a)(1); S.D. Ohio Civ. R. 37.1.

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Two days later, on May 12, 2023, Clayco’s counsel emailed counsel for Plaintiff
to inquire when the discovery responses would be provided. (Defendant Clayco’s Exhibit
D, Doc. No. 101-4.) Again, Plaintiff did not respond. (See Doc. No. 102, PageID 1264.)
On May 31, 2023, Clayco filed its First Motion. (Doc. No. 102.) Stating that it still
had not received discovery responses from Plaintiff, Clayco asked the Court to order
Plaintiff to comply with Clayco’s discovery requests and to impose sanctions on Plaintiff
pursuant to Rule 37 of the Federal Rules of Civil Procedure. (Id. at PageID 1264.)
While Clayco’s First Motion was pending, Judge Rice conducted additional
telephone conferences with the parties. On October 23, 2023, the parties filed a Joint
Discovery Plan (Doc. No. 110). That document stated, in relevant part: “Plaintiff will
provide updated medical records and bills by November 3, 2023. Responses to Clayco’s
outstanding discovery requests to be provided on November 3, 2023 as well.” (Id. at
PageID 1290.)
Despite these promises, however, Plaintiff did not provide his discovery responses
by November 3, 2023. (Memorandum in Support of Second Motion, Doc. No. 112,
PageID 1298.) Therefore, on November 13, 2023, Clayco’s counsel emailed counsel for
Plaintiff regarding the missing discovery responses. (Defendant Clayco’s Second Exhibit
A, Doc. No. 112-1.) Again, Plaintiff did not respond. (Doc. No. 113, PageID 1314-15.)
On November 27, 2023, Clayco filed its Second Motion. (Doc. No. 112.) In that
motion, Clayco again requested an order compelling Plaintiff to respond to Clayco’s
discovery requests and imposing sanctions pursuant to Rule 37 of the Federal Rules of
Civil Procedure. (Id. at PageID 1299-1300.) In addition, Clayco asked the Court to deem
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waived any objections that Plaintiff might assert in response to Clayco’s discovery
requests. As an alternative sanction, Clayco asked the Court to dismiss Plaintiff’s case for
failure to prosecute. (Id.) Plaintiff has not filed a response to the Second Motion.
II.

LEGAL STANDARD
Rules 33(b)(2) and 34(b)(2)(A) of the Federal Rules of Civil Procedure provide

that, unless otherwise agreed by the parties or ordered by the court, a party served with
interrogatories or requests for production of documents must respond or object within
thirty days. With respect to interrogatories, “[a]ny ground not stated in a timely objection
is waived unless the court, for good cause, excuses the failure.” Fed. R. Civ. P. 33(b)(4).
Although Rule 34, which governs document requests, does not contain the same waiver
provision, courts have applied the same waiver rule to document requests. E.g., Boles v.
Aramark Corr. Servs., No. 17-1919, 2018 WL 3854143, at *5 (6th Cir. March 19, 2018)
(“The district court appropriately applied [the Rule 33(b)(4)] standard to the defendants’
objections to [the plaintiff’s] Rule 34 request for production of documents.”).
If a party fails to timely respond or object to a discovery request, the proponent of
the request must make good-faith efforts to resolve the dispute without court intervention.
Fed. R. Civ. P. 37(a)(1); S.D. Ohio Civ. R. 37.1. If good-faith efforts at resolution are
unsuccessful, then the proponent of the discovery request may seek a court order
compelling the recipient to comply with the request. Fed. R. Civ. P. 37(a)(3)(B). This
Court has “broad discretion in the resolution of [a] motion to compel.” Collier v.
Logiudice, 818 F. App’x 506, 512 (6th Cir. 2020).

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In most circumstances, if a court grants a motion to compel, “the court must, after
giving an opportunity to be heard, require the party or deponent whose conduct
necessitated the motion . . . to pay the movant’s reasonable expenses incurred in making
the motion.” Fed. R. Civ. P. 37(a)(5)(A) (emphasis added). However, the court must not
order such a payment if 1) the movant filed the motion without attempting in good faith
to resolve the discovery dispute without court action, or 2) the party opposing the motion
to compel was substantially justified in its failure to respond, or 3) “other circumstances
make an award of expenses unjust.” Id.
III.

ANALYSIS
It is significant that Clayco’s Second Motion to Compel is unopposed. In general,

a party’s “[f]ailure to file a memorandum in opposition may result in the granting of any
motion that would not result directly in entry of final judgment or an award of attorneys’
fees.” S.D. Ohio Civ. R. 7.2(a)(2). See also, e.g., Kendle v. Whig Enters., LLC, No. 2:15CV-01295, 2016 WL 898569, at *4 (S.D. Ohio March 9, 2016) (McCann King, M.J.)
(“Ordinarily, an unopposed motion to compel [will] be granted.”).
The relevant facts are undisputed. Clayco served a set of interrogatories and
requests for production of documents on Plaintiff on September 14, 2022. (Doc. No. 87;
Doc. No. 112, PageID 1297.) Plaintiff failed to respond or object to those requests within
the thirty-day time limit provided by Rules 33(b)(2) and 34(b)(2)(A), or to request an
extension of time to do so. (Id.; see also Doc. No. 103.) More than a year has now passed
and despite Clayco’s repeated efforts to secure compliance, Plaintiff has apparently taken
no action with respect to Clayco’s discovery requests. (Doc. No. 112, PageID 1300.)
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In his response to Clayco’s First Motion, Plaintiff relied on a uniform discovery
plan that was discussed by some parties early in the litigation. (Doc. No. 103, PageID
1267-68.) Plaintiff implied – although he did not explicitly argue – that the proposed plan
obviated his obligations to respond to a party’s discovery requests. (Id.) This contention
is not well-taken. Even if, as Plaintiff contended, Clayco did not object to the uniform
discovery plan, it is also clear that Clayco did not agree to that plan (Doc. No. 1277).
Moreover, even if Plaintiff initially believed that no party would propound discovery
requests, his receipt of Clayco’s discovery requests should have dispelled any such
notion. In any event, Clayco’s repeated attempts to resolve the parties’ discovery dispute
plainly put Plaintiff on notice of his obligation to provide discovery responses.
Even if Plaintiff’s initial failures to provide discovery responses could be excused,
his more recent failures cannot be excused. By October 2023, Plaintiff was well aware of
his long-overdue obligation to respond to Clayco’s discovery requests. Indeed, it was
Plaintiff’s counsel who filed the Joint Discovery Plan, in which he promised that
“[r]esponses to Clayco’s outstanding discovery requests [are] to be provided on
November 3, 2023.” (Doc. No. 110, PageID 1290.) Plaintiff’s unexplained failures to
comply with that deadline and respond to Clayco’s repeated efforts to resolve this dispute
are unexcused and inexcusable.
It is therefore clear that Clayco is entitled to an order compelling Plaintiff to
comply with its discovery responses. Moreover, Plaintiff neither timely objected to
Clayco’s discovery requests nor made any attempt to show good cause for its failure to
do so. Accordingly, the Court finds that Plaintiff has waived any and all objections to
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those discovery requests. See Fed. R. Civ. P. 33(b)(4) & 34(b)(2)(C); Boles v. Aramark
Corr. Servs., No. 17-1919, 2018 WL 3854143, at *5 (6th Cir. March 19, 2018)
In addition, because Plaintiff’s conduct “necessitated [Clayco’s] motion[s],”
Plaintiff is presumptively required to pay Clayco’s expenses in making and prosecuting
those motions. Fed. R. Civ. P. 37(a)(5)(A). The Court will, however, afford Plaintiff an
opportunity to show cause why the Court should not order such sanctions.
Finally, the Court turns to Clayco’s request that the Court dismiss Plaintiff’s
claims for failure to prosecute. (Doc. No. 112, PageID 1300.) “The dismissal of an action
. . . is a harsh sanction which the court should order only in extreme situations showing a
clear record of delay or contumacious conduct by the plaintiff.” Carter v. Memphis, 636
F.2d 159, 161 (6th Cir. 1980) (internal citation omitted). It is true that, in exceptional
circumstances, “the failure to respond to a discovery request may constitute
contumacious conduct” of that kind. Barron v. Univ. of Mich., 613 F. App’x 480, 484
(6th Cir. 2015) (citing to Harmon v. CSX Transp., Inc., 110 F.3d 364 (6th Cir. 1997)
(affirming dismissal where plaintiff failed to answer interrogatories for over a year, failed
to respond to a motion to compel, and failed to comply with order compelling
discovery)). But it is also true that the extreme sanction of dismissal is generally
appropriate only if the court has previously explicitly warned the plaintiff of such a
possibility. Kovacic v. Tyco Valves & Controls, 433 F. App’x, 376, 382 (6th Cir. 2011).
Because Plaintiff has received no such warning this case, the Court will not consider
dismissal at this time. However, Plaintiff is specifically cautioned that any further

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evidence of delay or contumacious behavior – including any failure to fully and
timely comply with this Order – may result in the dismissal of his claims.
IV.

CONCLUSION
In sum, for the reasons stated, the Court ORDERS that Defendant Clayco’s First

Motion to Compel Discovery And [For] Sanctions (Doc. No. 101) and Second Motion to
Compel And [For] Sanctions (Doc. No. 112) are GRANTED.
a. Not later than FOURTEEN (14) DAYS from the date of the instant Order,
Plaintiff is ORDERED to respond fully and without objection to any and
all discovery requests previously propounded by Defendant Clayco. No
extensions to this deadline will be granted absent a showing of good cause.
b. Not later than FOURTEEN (14) DAYS from the date of the instant Order,
Plaintiff is ORDERED to show cause why Plaintiff should not pay
Defendant Clayco’s expenses incurred with respect to its First and Second
Motions pursuant to Rule 37(a)(5)(A) of the Federal Rules of Civil
Procedure. Defendant Clayco may file a reply no more than SEVEN (7)
DAYS from the filing of Plaintiff’s response.

IT IS SO ORDERED.
/s/ Caroline H. Gentry
Caroline H. Gentry
United States Magistrate Judge

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Procedure on Objections
Pursuant to Fed. R. Civ. P. 72(a), any party may serve and file specific, written
objections within FOURTEEN days after being served with this Order. Pursuant to Fed.
R. Civ. P. 6(d), this period is extended to SEVENTEEN days if this Order is being
served by one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), or (F).
Such objections shall specify the portions of the Order objected to and shall be
accompanied by a memorandum of law in support of the objections. If the Order is based
in whole or in part upon matters occurring of record at an oral hearing, the objecting
party shall promptly arrange for the transcription of the record, or such portions of it as
all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned
District Judge otherwise directs. A party may respond to another party’s objections
within FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981)

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