Kirby et al v. O'Dens et al
Filing
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OPINION AND ORDER by Magistrate Judge Paul J Cleary ; denying 80 Motion for Protective Order; denying 80 Motion for Sanctions; granting 93 Motion to Compel; denying 94 Motion to Compel; denying 94 Motion for Sanctions (kjp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
ELBERT KIRBY, JR., et al.,
Plaintiffs,
v.
DAVID M. O’DENS, et al.,
Defendants.
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Case No. 14-CV-388-GKF-PJC
OPINION AND ORDER
Before the Court are three discovery motions, including two Motions to Compel
[Dkt. Nos. 93, 94], and a Motion for Protective Order [Dkt. No. 80]. For the reasons set
forth below, Plaintiffs’ Motions [Dkt. Nos. 80 and 94] are DENIED. Defendants’ Motion
[Dkt. No. 93] is GRANTED.
I
PLAINTIFFS’ REPEATED CLAIMS
THAT THEY WERE NOT SERVED OR DID NOT RECEIVE MATERIAL VIA MAIL
Plaintiffs have repeatedly claimed that they never received materials that were
mailed to them at their last known address. This is a critical issue, because much
depends on whether discovery requests or responses were properly served on the
Plaintiffs. The Court holds that the record evidence supports the following findings:
1. On July 11, 2014, Plaintiffs Elbert Kirby Jr. (“Kirby”) and Caleb Meadows
(“Meadows”) initiated this lawsuit and represented their residence and mailing
address to be 1125 East 8th Street, Tulsa, Okla. (“the 1125 address”). [Dkt. No.
1]. They have consistently listed this mailing address on every pleading herein.
At no time have Plaintiffs indicated that their mailing address has changed.
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2. On November 24, 2014, Defendants served certain discovery requests on
Plaintiff Elbert Kirby Jr. by certified mail, return receipt requested to the 1125
address. [Defendants’ Exhibits – Hearing on Discovery Motions (hereafter,
“Defendants’ Hearing Exhibits,”), Ex. 10]. On December 29, 2014, the item was
returned to Sender by the U.S. Postal Service as “Unclaimed.”
3. On November 24, 2014, Defendants served discovery requests on Plaintiff Caleb
Meadows by certified mail, return receipt requested at the 1125 address. [Id.,
Ex. 11]. On December 29, 2014, the item was returned to Sender as
“Unclaimed.”
4. On December 22, 2014, Defendants served on Kirby Requests for Admission by
certified mail, return receipt requested, at the 1125 address. These Requests
were accepted, and signed for by someone at Plaintiffs’ residence. [Id., Ex. 12].
5. On March 10, 2015, Defendants served Plaintiffs with amended discovery
responses by certified mail, return receipt requested, to their last known address.
On April 9, 2015, the item was returned to Sender as “Unclaimed.” [Ex. 2].
6. On March 12, 2015, Defendants served Plaintiffs additional documents by
certified mail, return receipt requested to the 1125 address. On April 9, 2015, the
item was returned to Sender as “Unclaimed.” [Id., Ex. 3].
7. On March 12, 2015, Defendants served on Plaintiff Kirby their Second Set of
Interrogatories by certified mail, return receipt requested. On April 9, 2015, this
item was returned to Sender “Unclaimed.” [Id., Ex. 13].
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8. On March 13, 2015, Defendants served on Plaintiffs Kirby and Meadows their
Second Set of Interrogatories by certified mail, return receipt requested. On April
9, 2015, the items were returned to Sender as “Unclaimed.” [Id., Ex. 14].
9. On March 17, 2015, Defendants sent Plaintiffs additional documents, by certified
mail, return receipt requested to the 1125 address. On April 27, 2015, these
items were returned to Sender as “Unclaimed.” [Id., Ex. 4].
10. On March 23, 2015, Defendants produced certain documents to Plaintiffs by
serving them through certified mail, return receipt requested to the 1125 address.
On April 27, 2015, the documents were returned to Sender as “Unclaimed.” [Id.,
Ex. 5].
11. On April 7, 2015, Defendants served Plaintiffs with documents as ordered by the
Court, by mailing them certified mail, return receipt requested. Notice was left at
the 1125 address, but the material was “Unclaimed.” [Id., Ex. 6].
12. On April 9, 2015, after Plaintiffs denied having received the April 7 documents, a
“courtesy copy” of certain documents was attached to an email sent to Plaintiffs
at “followtherules@icloud.com.” Defendants notified Plaintiffs that the actual
document production was not sent because it exceeded Plaintiffs’ email capacity.
[Id., Ex. 7].
13. On April 17, 2015, Defendant O’Dens served Plaintiffs with his amended
discovery responses and Non-Parties’ Response to Subpoena. These were sent
by certified mail, return receipt requested to the 1125 address. Notice was left at
the 1125 address, but it appears it was not claimed. [Id., Ex. 8].
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14. On April 20, 2015, O’Dens sent the Plaintiffs an email with courtesy attachments
of the materials sent by mail on April 17. [Id., Ex. 9]. Plaintiffs claim that as of
the May 8, 2015 hearing they had not received these materials
15. On April 30, 2015 and on May 4, 2015, O’Dens sent Plaintiffs emails concerning
deposition dates. Defendants state that Plaintiffs did not respond. [Id., Ex. 15].
The record evidence establishes that in eleven instances described above, the
Defendants served certain papers on Plaintiffs by certified mail to their last known
address. In ten of those instances, Plaintiffs claim they never received the mailed
materials.1 The 1125 address is the address that the Plaintiffs have used throughout
this lawsuit. See for example, Complaint, Dkt. No. 2, p.5; Joint Status Report, Dkt. No.
19, p. 7; Plaintiffs’ Motion for Summary Judgment, Dkt. No. 27, p. 13; Plaintiffs’ Motion
to Compel, Dkt. No. 52, pp. 25 & 26; Plaintiffs’ Motion for Protective Order, Dkt. No. 80,
p. 7; Plaintiffs’ Objection to Defendnats (sic) Motion for Attorney Fees, Dkt. No. 107, p.
3. At times, Plaintiffs have accepted mail delivered to this address. E.g., Defendants’
Hearing Exhibits, Ex. 1 & 12. Plaintiffs have never provided a different mailing address.
II
LEGAL PRINCIPLES REGARDING SERVICE
OF PLEADINGS AND OTHER PAPERS
The Federal Rules of Civil Procedure provide requirements for service of
pleadings, discovery papers, motions and other legal papers:
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There is record evidence indicating that when no authorized recipient was
available to accept an item, the U.S. Postal Service left Plaintiffs a notice that the item
could be claimed at the Post Office. After 15 days, the Postal Service may return the
items to the Sender as “Unclaimed”; however, it appears that the Postal Service
generally waits 30 days before returning items to the Sender. E.g., Id., USPS Tracking
record, Ex. 5, 6, & 8.
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(b) Service: How Made.
(1) Serving an Attorney. If a party is represented by an attorney, service
under this rule must be made on the attorney unless the court orders
service on the party.
(2) Service in General. A paper is served under this rule by:
(A) handing it to the person;
(B) leaving it:
(i)
at the person's office with a clerk or other person in charge or,
if no one is in charge, in a conspicuous place in the office; or
(ii)
if the person has no office or the office is closed, at the
person's dwelling or usual place of abode with someone of
suitable age and discretion who resides there;
(C) mailing it to the person's last known address--in which event service
is complete upon mailing;
Fed. R. Civ. P. 5(b) (emphasis added).
The papers described above may be served by mailing them to the last known
address of the person served. Wolters Kluwer Fin. Servs., Inc. v. Scivantage, 564 F.3d
110, 116 (2d Cir. 2009). Service by mail is complete upon mailing. Fed. R. Civ. P.
5(b)(2)(C). Mailing to a person’s last known address completes effective service,
Theede v. U.S. Dept. of Labor, 172 F.3d 1262, 1266 (10th Cir. 1999), even if the mail is
not received. Radkov v. Ashcroft, 375 F.3d 96, 98 (1st Cir. 2004); Ealy v.
Superintendent of Groveland Corr. Facility, 680 F.Supp.2d 445, 447-48 (W.D.N.Y.
2010); Simon v. Scott, 2006 WL 42374, *3 (N.D.Ga. Jan. 6, 2006) (non-receipt does not
invalidate service by mail); Stamper v. Parsons, 2005 WL 82135, *3 (D.Kan. Jan. 12,
2005). Thus, it is incumbent upon the parties to a lawsuit to be sure they have provided
a current and correct mailing address to the Court and to the other parties to the
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litigation. Here, Plaintiffs provided the 1125 address to the Court and Defendants upon
filing this lawsuit, and they have maintained that this is their correct mailing address
throughout the litigation by putting the 1125 address on every pleading or document
they have filed or served. Accordingly, Defendants O’Dens, SettlePou and Ocwen
properly served Kirby and Meadows by mailing them papers to their last known
address. Service was complete upon mailing; service was effective even if the mail was
not received, or if Plaintiffs chose not to retrieve their mail from the local Postal Station.
With this issue resolved, the Court now addresses these three outstanding discovery
matters.
III
DISCUSSION
A. Plaintiffs’ Motion for Protective Order
Alternatively Motion for Sanctions [Dkt. No. 80]
Plaintiffs complain that Defendants did not comply with this Court’s Order of
March 24, 2015, which required production by April 7, 2015, of certain subpoenaed
documents and a Privilege Log (if required by LCvR26.1) (hereafter, “the April 7
documents”). Plaintiffs claim they never received these papers. Defendants state that
the items were mailed on April 7, to the Plaintiffs’ last known address, in conformity with
Fed. R. Civ. P. 5(b)(2)(C).
Plaintiffs seek protection “from the defendants’ atrocities” [Dkt. No. 80, p.3],
specifically they ask the Court to not allow their depositions prior to production of the
April 7 documents. Plaintiffs also seek unspecified sanctions for Defendants’ alleged
non-compliance with the Court’s order.
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Plaintiffs have been properly served with Defendants’ discovery responses as
required. Defendants placed their responses in the mail on April 7, 2015, in accordance
with the Federal Rules of Civil Procedure.2 Defendants also assert that they served the
responses again on April 9, 2015. Plaintiffs contend that they never received these
documents. The Court finds that Plaintiffs were properly served by mail as required by
the Federal Rules; accordingly, the Motion for Protective Order and Sanctions is
DENIED. The Court will consider an award of fees and expenses under Rule
37(a)(5)(B) if Defendants apply for such within 10 days of this Order.
B. Defendants’ Fifth Motion to Compel [Dkt. No. 93]
Defendants’ Fifth Motion to Compel concerns discovery requests served on
Plaintiffs on March 12 (Kirby) and March 13 (Meadows), 2015. The discovery consisted
of a Second Set of Interrogatories propounded by each of the three Defendants to each
of the Plaintiffs. As of the date of the Court’s hearing on this matter – May 8, 2015 – the
Plaintiffs had not responded. Again, Plaintiffs state that they never received the
discovery requests. [Dkt. No. 106, ¶ 1].3
Attached to Defendants’ Motion to Compel are postal receipts establishing that
the discovery requests were placed in the mail to Plaintiffs on March 12 and 13, 2015.
The record evidence establishes that Defendants properly served their discovery
requests on the Plaintiffs in accordance with Rule 5(b)(2)(C). Therefore, the Court
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A U.S. Postal receipt establishes that Defendants put their discovery responses
in the mail to both Plaintiffs on April 7, 2015. [Ex. 1 to Dkt. No. 87]. Defendants again
sent the materials on April 9, 2015. [Ex. 5 to Dkt. No. 87]. Furthermore, the responses
are attached as exhibits to Defendants’ Response to Plaintiffs’ motion [Dkt. No. 87, Ex.
5], which was filed on April 10, 2015.
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The discovery requests were attached to Defendants’ Motion to Compel. [Dkt.
No. 93, Ex. 1 & 2]. Plaintiffs can hardly complain they have not seen them.
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GRANTS the Motion to Compel. Plaintiffs will fully answer the interrogatories and verify
them as required by Rule 33(b)(3) under oath and return their answers to Defendants by
May 22, 2015. Pursuant to Rule 37(a)(5)(A), Plaintiffs will be assessed the costs of this
motion if Defendants apply for such within 10 days hereof.
C. Plaintiffs’ Fourth Motion to Compel and Request for Sanctions [Dkt. No. 94]
In their Fourth Motion to Compel, Plaintiffs complain that they have not received
the Defendants’ privilege log of attorney-client and work-product protected documents
nor “the exhibits and evidence not in these categories.” [Dkt. No. 94, p. 1]. Plaintiffs
complain that Defendants are sending documents by mail and not to a “dropbox”
account as Plaintiffs have sometimes requested.
On April 8, 2015, the Court Ordered Defendant O’Dens to answer certain
interrogatories and respond to certain document requests. O’Dens was to comply with
this Order within 10 days, or by April 18, 2015.
Defendant has produced documents showing that the discovery responses were
placed in the mail on April 17, 2015. The Federal Rules permit service by mail to a
person’s last known address. Under Rule 5(b)(2)(C), service was complete on April 17,
in compliance with the Court’s Order. After Plaintiffs filed this motion, Defendants sent
the materials again on April 20, 2015, this time by email.
The record evidence reflects that Defendants properly served the necessary
discovery responses on April 17, 2015. Furthermore, the discovery responses are
attached as exhibits to Dkt. No. 102. Plaintiffs’ Motion to Compel is DENIED. Pursuant
to Rule 37(a)(5)B), the Court will consider an award of fees and expenses if Defendants
apply for such within 10 days hereof.
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For the reasons set forth above, Plaintiffs’ Motion for Protective Order/Sanctions
[Dkt. No. 80] is DENIED; Defendants’ Motion to Compel [Dkt. No. 93] is GRANTED, and
Plaintiffs are to respond to the Second Set of Interrogatories by May 22, 2015; and
Plaintiffs’ Fourth Motion to Compel and Request for Sanctions [Dkt. No. 94] is DENIED.
IT IS SO ORDERED, this 14th day of May 2015.
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