Steen v. Garrett et al

Filing 60

ORDER granting 55 Motion to Strike. Signed by Honorable David C. Norton on 04-30-2013. (gcle, 4/30/13)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
BRITTANI STEEN,
Plaintiff,
vs.
RANDY L. GARRETT, Sheriff of
Clarendon County, et al.,
Defendants.

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No. 2:12-cv-1662-DCN

ORDER

This matter is before the court on a motion to strike plaintiff Brittani Steen’s
opposition to the pending motion to dismiss. Both the motion to strike and the
underlying motion to dismiss are brought by defendants Sheriff Garrett, Captain Baker,
and Clarendon County Sheriff’s Department. For the reasons stated below, the court
grants defendants’ motion.
I. BACKGROUND
On May 18, 2012, minor plaintiff Brittani Steen, through her parent and natural
guardian Aimee McWhite, filed a lawsuit in the South Carolina Court of Common Pleas
for the Third Judicial Circuit in Clarendon County. Steen brings gross negligence, failure
to warn, negligent hiring, § 1983, and other related claims against the Clarendon County
Sheriff’s Department, Randy Garrett, the county sheriff, and Merke Baker, a captain with
the department. Steen claims that she was injured when her car was hit by a drunk driver
named Clarence Vaughn (Clarence) on January 26, 2012. She alleges that Captain Baker
pulled Clarence over earlier the same day, knew that Clarence was heavily intoxicated,
and yet allowed Clarence to stay on the road. Steen further alleges that Clarence

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continued drinking and driving that day, eventually slamming into Steen’s car and
injuring her severely. Steen contends that she would not have been injured if Captain
Baker had arrested Clarence earlier in the day.
Defendants removed the case to this court on June 15, 2012, and answered the
complaint on the same day. On October 31, 2012, defendants moved to stay all
proceedings in the case pending resolution of their motion to amend their answer. On
November 7, 2012, the court granted the motion to stay.
At a hearing held on December 13, 2012, the court ordered attorney Steven S.
McKenzie to withdraw from his representation of Steen. The court also directed the
parties to submit a revised scheduling order within two weeks of the date that Steen
obtained new counsel. Though Steen did eventually obtain new counsel, no revised
scheduling order has been filed.1 At the hearing, the parties stated that they have agreed
to continue the stay in this case through at least the issuance of this order.
On January 14, 2013, defendants moved to dismiss this case. After obtaining an
extension of time in which to file a response, Steen – through her new counsel – opposed
the motion to dismiss on March 4, 2013. Defendants then filed the instant motion to
strike Steen’s opposition on March 14, 2013.
II. DISCUSSION
Defendants argue that Steen’s opposition to the motion to dismiss (Steen’s
Opposition) should be stricken because it relies on improper and objectionable materials,

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The July 31, 2012 consent amended scheduling order includes the following relevant deadlines:
 Rule 26(a)(1) disclosures – August 10, 2012
 Rule 26(f) report – August 10, 2012
 Close of discovery – November 15, 2012
 Dispositive motions – January 11, 2013

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namely, an affidavit not produced in discovery and unanswered requests for admission
that Steen allegedly served on defendants simultaneously with the state court complaint.
A. Steen’s Requests for Admission
Steen’s Opposition relies on several facts and conclusions drawn from requests
for admissions she allegedly served on defendants while this case was pending in state
court. Steen contends that because defendants failed to respond to her requests for
admissions, all of those discovery requests are deemed admitted. Defendants argue that,
even if they had been properly served, those discovery requests were rendered “dead”
when the case was removed to federal court. Defs.’ Mot. to Strike 2, ECF No. 55.
The parties dispute whether the requests for admission were properly served on
defendants, and have filed witness affidavits that support their respective positions. The
court, however, need not resolve this factual dispute to determine whether the portions of
Steen’s Opposition that rely on the requests for admission should be stricken.
It is axiomatic that the Federal Rules of Civil Procedure govern cases that have
been removed from state court to federal court. Fed. R. Civ. P. 81(c) (“These rules apply
to a civil action after it is removed from state court.”). While requests for admission will
be deemed admitted if not objected to within thirty days, Fed. R. Civ. P. 36(a)(3), “[a]
party may not seek discovery from any source before the parties have conferred as
required by Rule 26(f) . . . .” Fed. R. Civ. P. 26(d)(1).
Courts have grappled with the question of how to handle discovery requests that
were made but not due before a state case was removed to federal court. One court has
determined that requests for admission properly served in a state court case remain in
force when the case is removed to federal court. Mann v. Metro. Life Ins. Co., No. 99-

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cv-0036, 1999 WL 33453411, at *2 (W.D. Va. July 9, 1999) (holding that “the removal
of the instant case from state to federal court did not affect the validity and force of
plaintiff's requests for admissions” but nevertheless denying the plaintiff’s motion to have
requests for admission deemed admitted). In support of its finding, the Mann court relied
on 28 U.S.C. § 1450, which states that “All injunctions, orders, and other proceedings
had in [a state] action prior to its removal shall remain in full force and effect until
dissolved or modified by the district court.”
The vast majority of courts, however, have drawn the opposite conclusion, finding
that admissions requests served in a state case need not be answered once the case is
removed to federal court, if the deadline to answer those requests did not lapse before
removal. See, e.g., Int’l Transp. Workers Fed’n v. Mi-Das Line SA, No. 13-cv-0454,
2013 WL 1403329, at *4 n.3 (E.D. La. Apr. 4, 2013) (“[W]here the state-level discovery
requests had not been ruled on in state court prior to removal, Rule 26(d) and Rule 26(f)
would operate to preclude such discovery from occurring.”); Sterling Sav. Bank v. Fed.
Ins. Co., No. 12-cv-0368, 2012 WL 3143909, at *2 (E.D. Wash. Aug. 1, 2012); Jennings
v. City of Lafollette, No. 09-cv-0072, 2010 WL 4704462, at *1 (E.D. Tenn. Aug. 24,
2010); Wilson ex rel. Wilson v. Gen. Tavern Corp., No. 05-cv-81128, 2006 WL 290490,
at *1 (S.D. Fla. Feb. 2, 2006); Riley v. Walgreen Co., 233 F.R.D. 496, 498-99 (S.D. Tex.
2005); Visicorp v. Software Arts, Inc., 575 F. Supp. 1528, 1531 (N.D. Cal. 1983),
abrogated on other grounds by Stewart Org. v. Ricoh Corp., 487 U.S. 22 (1988). These
courts have found that the text of 28 U.S.C. § 1450 does not apply to discovery requests,
since those requests do not amount to an injunction, order, or other proceeding. See, e.g.,
Sterling Sav. Bank, 2012 WL 3143909, at *2 (“An abundance of case law substantiates

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the notion such discovery requests do not count as ‘proceedings’ pursuant to 28 U.S.C. §
1450, and are thus nullified upon removal to Federal court.”).
The court finds the majority view persuasive. This interpretation comports with a
plain reading of the Federal Rules, which state that that parties may not seek discovery
before they have participated in a Rule 26(f) conference. It also comports with a plain
reading of 28 U.S.C. § 1450, as discovery requests are not injunctions, orders, or
proceedings of a state court.
Regardless of whether Steen’s discovery requests were properly served, this case
was removed to federal court before defendants’ responses were due. Steen’s discovery
requests were thus rendered “null and ineffective” when defendants removed this case to
federal court. Wilson, 2006 WL 290490, at *2. As a result, any portions of Steen’s
opposition that rely on those requests for admissions are improper and shall be stricken.
B. Affidavit of Witness Jerome Vaughn
Defendants also contend that Steen’s opposition to the motion to dismiss should
be stricken to the extent that it relies on an affidavit provided by a witness named Jerome
Vaughn (Jerome).2 Defendants assert that Steen’s prior counsel did not disclose Jerome’s
affidavit during discovery, and that she should not be allowed to rely on it now.
Parties have a continuing obligation to timely supplement their discovery
responses and Rule 26(a) responses. Fed. R. Civ. P. 26(e)(1). Steen’s former counsel,
Steven S. McKenzie, failed to meet this obligation.3 However, it is not for this reason

Jerome is the first cousin of Clarence Vaughn, the drunk driver who struck Steen’s car on
January 26, 2012.
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McKenzie’s excuse – that he would have supplemented Steen’s discovery responses with
Jerome’s affidavit but for the court-ordered stay in this case – rings hollow. McKenzie identified
Jerome as a witness on October 9, 2012, and Jerome swore out his affidavit two days later.
McKenzie Aff. ¶ 8; Vaughn Aff. 2. Defendants moved to stay this case on October 31, 2012.
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that the court strikes the portions of Steen’s Opposition that rely on Jerome’s affidavit.
Rather, the court must strike any such portions of Steen’s Opposition for the simple
reason that they rely on matters outside the pleadings. See Tellabs, Inc. v. Makor Issues
& Rights, Ltd., 551 U.S. 308, 322 (2007) (on a motion to dismiss, “courts must consider
the complaint in its entirety, as well as . . . documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice.”). It is possible that
Jerome’s affidavit may be appropriate for the court’s consideration on another occasion,
such as the determination of a motion for summary judgment. However, the court cannot
consider Jerome’s affidavit in the context of the pending motion to dismiss because the
affidavit is neither part of the pleadings nor incorporated into the pleadings by reference.
IV. CONCLUSION
For the foregoing reasons, the court GRANTS defendants’ motion to strike
Steen’s Opposition. Steen may file a revised memorandum in opposition to defendants’
motion to dismiss within 15 days of the date of this order. The revised memorandum
may not rely on, incorporate, or refer to Jerome Vaughn’s affidavit or to any discovery
requests made before this case was removed to federal court.

Defs.’ Mot. to Stay Proceedings, ECF No. 20. The court stayed the case beginning on November
7, 2012. Order Granting Mot. to Stay Proceedings, ECF No. 25. McKenzie’s failure to disclose
cannot be attributed to the stay in proceedings when McKenzie had identified Jerome as a witness
and obtained his affidavit almost a month before the stay was imposed.

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AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE

April 30, 2013
Charleston, South Carolina

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