Ace Oilfield Rentals LLC v. Western Dakota and Fabrication LLC et al

Filing 122

ORDER granting 102 ACE Oilfield Rentals, LLCs Motion to Compel; granting 107 ACE Oilfield Rentals, LLCs Renewed Motion to Compel. Plaintiff is directed to submit evidence of its reasonable attorneys fees and costs within 14 days of the date of this Order. Defendant Kerkvliet is directed to attend a properly noticed deposition at a date and time that is mutually convenient to the parties and provide full and complete responses to Interrogatory Nos.2, 6, 14, and 15 and Request for Production Nos. 3-37 within 14 days from thedate of this Order. Signed by Honorable Timothy D. DeGiusti on 8/19/2021. (mb)

Case 5:15-cv-00672-D Document 122 Filed 08/19/21 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ACE OILFIELD RENTALS, LLC,
Plaintiff,
v.
WESTERN DAKOTA WELDING
AND FABRICATION, LLC,
DOUG KERKVLIET,
TUCKER PANKOWSKI, and
WESDAK WELDING AND
DIESEL, LLC,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-15-672-D

ORDER
Before the Court is Plaintiff ACE Oilfield Rentals, LLC’s Motion to Compel [Doc.
No. 102] and Plaintiff ACE Oilfield Rentals, LLC’s Renewed Motion to Compel [Doc. No.
107]. The motions seek to compel complete discovery responses and deposition attendance
from Defendant Kerkvliet. Defendant Kerkvliet has failed to respond to either motion, and
they are therefore deemed confessed. See LCvR7.1(g) (“Any motion that is not opposed
within 21 days may, in the discretion of the court, be deemed confessed.”).
Further, after reviewing the motions, the Court finds that Plaintiff has demonstrated
good cause for an order compelling Defendant Kerkvliet to respond to Plaintiff’s discovery
requests and request for a deposition. In short, Plaintiff noticed Defendant Kerkvliet for a
deposition and submitted interrogatories and requests for production prior to the close of
discovery. Defendant Kerkvliet failed to attend the deposition and failed to provide
discovery responses by the response deadline. This complete failure to participate in

Case 5:15-cv-00672-D Document 122 Filed 08/19/21 Page 2 of 3

discovery resulted in the filing of Plaintiff’s Motion to Compel on January 5, 2021.
Defendant Kerkvliet then filed his Responses to Plaintiff’s First Set of Interrogatories [Doc.
No. 111] and his Responses to Plaintiff’s First Set of Requests for Production [Doc. No.
112]. See also Pl.’s Renewed Mot. to Compel, Ex. 1. The responses were deficient in
several ways, which necessitated the filing of Plaintiff’s Renewed Motion to Compel.
The Court agrees with Plaintiff that supplementation of the discovery responses is
necessary. Certain responses are inconsistent with other evidence – suggesting that the
response is either untrue or incomplete – while others simply fail to respond to the question
asked. Additionally, Defendant Kerkvliet has responded to several requests for production
with factual statements rather than providing either an objection or a responsive document.
See FED R. CIV. P. 34(b)(2)(B) (requiring response to “state that inspection and related
activities will be permitted as requested or state with specificity the grounds for objecting
to the request.”). He also avoids responding to numerous requests by asserting that the
documents are in the control of another entity, but given his relationship with the entity at
issue, it is doubtful that the documents are outside of his control. See FED R. CIV. P. 34
34(a) (requiring production of documents “in the responding party’s possession, custody,
or control”); Ice Corp. v. Hamilton Sundstrand Corp., 245 F.R.D. 513, 517 (D. Kan. 2007)
(“Production of documents not in a party’s possession is required if a party has the practical
ability to obtain the documents from another, irrespective of legal entitlements to the
documents.”).
Plaintiff also requests attorney’s fees and costs incurred in the preparation of both
its Motion to Compel and its Renewed Motion to Compel. Courts must award reasonable

Case 5:15-cv-00672-D Document 122 Filed 08/19/21 Page 3 of 3

attorney’s fees and costs if a motion to compel is granted or if the requested discovery is
provided after the motion was filed, unless other circumstances make an award unjust.
FED.R.CIV.P. 37(a)(5)(A). As set forth above, Defendant Kerkvliet failed to attend a
scheduled deposition and initially failed to provide any discovery responses at all. When
he finally did provide responses, they were deficient. Given Defendant Kerkvliet’s refusal
to participate in discovery in a meaningful way, the Court finds that awarding reasonable
attorney’s fees and costs in this circumstance would not be unjust.
Accordingly, Plaintiff ACE Oilfield Rentals, LLC’s Motion to Compel [Doc. No.
102] and Plaintiff ACE Oilfield Rentals, LLC’s Renewed Motion to Compel [Doc. No.
107] are GRANTED. Plaintiff is directed to submit evidence of its reasonable attorney’s
fees and costs within fourteen (14) days of the date of this Order. Defendant Kerkvliet is
directed to 1) attend a properly noticed deposition at a date and time that is mutually
convenient to the parties and 2) provide full and complete responses to Interrogatory Nos.
2, 6, 14, and 15 and Request for Production Nos. 3-37 within fourteen (14) days from the
date of this Order. Discovery responses are not to be filed with this Court but are to be sent
to Plaintiff’s counsel. Defendant Kerkvliet is further advised that failure to comply with
this order may result in sanctions, including the entry of a default judgment. See FED. R.
CIV. P. 37(B)(2).
IT IS SO ORDERED this 18th day of August, 2021.

. DeGIUSTI
Chief United States District Judge