Wright v. The American's Bulletin et al
Filing
197
OPINION & ORDER: Wright's Motion to Compel 155 is Granted, and Defendant Brewer's filing 167 , dated June 29, 2011, is Denied as Moot. Brewer is directed to respond to Wright's First Interrogatories and to reimburse Wright for his reasonable expenses incurred in connection with bringing his motion in the amount of $15.00, within thirty days of the date hereof. Signed on 8/8/11 by Magistrate Judge Paul Papak. (gm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ANTHONY STEVEN WRIGHT,
Plaintiff,
CV 10-6118-PK
OPINION AND
ORDER
v.
THE AMERICAN'S BULLETIN
NEWSPAPER CORP.,
CYNTHIA MARIE BREWER
Defendants.
PAP AK, Magistrate Judge:
Plaintiffpro se Anthony Steven Wright filed this action against defendants The
American's Bulletin Newspaper Corp. and Cynthia Marie Brewer, on May 13,2010, alleging
defendants' liability for defamation and breach of contract. This court has jurisdiction over
Wright's claims pursuant to 28 U.S.C. ยง 1332, based on the complete diversity of the parties and
the amount in controversy.
Now before the court are Wright's motion (# 155) to compel discovelY responses and
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Brewer's filing (# 167) styled as a motion to dismiss. I have considered the parties' submissions
and all of the pleadings on file. For the reasons set forth below, Wright's motion is granted and
Brewer's filing is denied as moot.
FACTUAL BACKGROUND
Wright served Brewer with his First Inte11'0gatories on April 28, 2011. Brewer's response
to Wright's inte11'0gatories was due May 28, 2011. Brewer failed to make a timely response or to
request extension of the time within which to respond.
On June 3, 2011, pursuant to Federal Civil Procedure Rule 37(a), Wright filed his motion
to compel answers to interrogatories and for sanctions consisting of reasonable expenses of no
less than $15.00 for postage and copies. On June 29, 2011, Brewer filed a document styled as a
motion to dismiss but which, for reasons discussed below, I construe as an opposition to Wright's
motion to compel.
ANALYSIS
Pursuant to Federal Civil Procedure Rule 33, each of a propounding party's
interrogatories "must, to the extent it is not objected to, be answered separately and fully in
writing under oath." Fed. R. Civ. P. 33(b)(3). Ifan interrogatory is objected to, "[t]he grounds
for objecting ... must be stated with specificity." Fed. R. Civ. P. 33(b)(4). "Any ground not
stated in a timely objection is waived unless the court, for good cause, excuses the failure." ld.;
see also L.R. 26.7(a) ("Failure to object to a discovery request within the time permitted by the
Federal Rules of Civil Procedure, or within the time to which the parties have agreed, constitutes
a waiver of any objection").
Federal Civil Procedure Rule 37(a)(3)(B) empowers a propounding party to bring a
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motion to compel discovery responses if "a patty fails to answer an intenogatOlY submitted under
Rule 33 .... " Fed. R. Civ. Pro. 37(a)(3)(B)(iii) and (iv). If such a motion is granted, "the court
must, after giving an opportunity to be heard, require the patty or deponent whose conduct
necessitated the motion ... to pay the movant's reasonable expenses incuned in making the
motion, including attomey's fees." Fed. R. Civ. Pro. 37(a)(5)(A). Notwithstanding the
foregoing, "the court must not order this payment if:"
(i) the movant filed the motion before attempting in good faith to obtain the
disclosure or discovelY without court action;
(ii) the opposing patty's nondisclosure, response, or objection was substantially
justified; or
(iii) other circumstances make an award of expenses unjust.
Id "Unless otherwise directed by the Court, the party against whom an order to compel has been
entered must comply with the order within eleven (11) days after the date of entry of the order."
L.R.37.2.
Brewer's filing dated June 29, 2011, is styled as a motion to dismiss and, indeed, although
the argument set forth in her supporting legal memorandum is largely unintelligible, her
supporting argument does contain some suggestion that the motion could be directed at a
pleading, specifically an amended pleading (Wright has not to date been granted leave to file an
amended pleading and has not to date successfully filed any amended complaint in this action).
However, the essential gravamen of Brewer's filing neveliheless appears to be that the court
should deny Wright's motion (#155) to compel rather than that any claim should be dismissed.
Specifically, Brewer appears to argue that the court should deny Wright's motion to
compel on the grounds that Brewer had trouble understanding the court's order setting the
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motion to compel under advisement, and/or on the grounds that Brewer did not receive Wright's
interrogatOlY requests in the mail from Wright. Brewer's arguments, so interpreted, do not
provide grounds for denying Wright's motion. First, the fact that Brewer may have found the
COutt's order setting Wright's motion under advisement difficult to understand is without impact
on Brewer's unambiguous obligation under Federal Civil Procedure Rule 33 to respond to
Wright's discovery requests. Second, the evidence appears to establish that Wright served
Brewer with his interrogatOlY requests at P.O. Box 5000, Central Point, Oregon, 97502, which is
the same address of record the court relies upon for Brewer. Brewer may not avoid compliance
with her discovelY obligations by refusing to accept mail from her opposing patty.
In light of Brewer's clear failure to comply with her unambiguous discovery obligations,
Wright's motion to compel production is granted. In light of Brewer's assertion that she did not
receive Wright's interrogatories through the mail from Wright, Brewer shall have thirty days,
rather than the customary eleven days, within which to respond to Wright's First Intel1'0gatories.
Brewer can find Wright's First Intel1'0gatories attached as an exhibit to Wright's affidavit filed on
June 10,2011, in SUppOit of his motion, at Docket No. 157. Because there appears to be no
futiher issue requiring resolution by the court in connection with Brewer's filing of June 29,
2011, that filing is denied as moot.
CONCLUSION
For the reasons set fOith above, Wright's motion (#155) is granted, and Brewer's filing
(#167) dated June 29, 2011, is denied as moot. Brewer is directed to respond to Wright's First
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Intenogatories and to reimburse Wright for his reasonable expenses incurred in connection with
bringing his motion in the amount of$15.00, within thirty days of the date hereof.
Dated this 8th day of August, 20 II.
~&( ~1>aJR,
Honorable Paul Papak
United States Magistrate Judge
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