Elmore v. Greenwood, City of et al

Filing 81

ORDER granting 62 Motion to Compel; granting 62 Motion to Expand Interrogatories, but the interrogatory limit is expanded to 35 rather than the 50 Plaintiff requested. Signed by Magistrate Judge Kaymani D West on 6/19/2014.(mcot, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

Edward Lee Elmore,

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Plaintiff,
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v.
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City of Greenwood, et al.,
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Defendants.
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___________________________________ )

Civil Action No.: 3:13-cv-01755-TLW-KDW

ORDER

Plaintiff, a former state prisoner, seeks relief pursuant to 42 U.S.C. § 1983. This matter is
before the court1 on Plaintiff’s Motion to Compel and Motion to Expand Interrogatories Limit,
ECF No. 62, directed at Defendant City of Greenwood. Defendant filed an opposition to
Plaintiff’s Motion on April 28, 2014. ECF No. 64. This court held a hearing via telephone on
June 18, 2014, at which time the Motion was taken under advisement. ECF No. 77. Having
considered the parties’ arguments as well as their briefs and related filings, the court grants
Plaintiff’s Motion as set forth herein.
Plaintiff’s Motion to Compel
In his Motion to Compel, Plaintiff seeks an order compelling Defendant to respond or
more fully respond to Plaintiff’s First Set of Interrogatories. ECF No. 62 at 1. Here, Defendant
answered only the first 12 of 20 numbered interrogatories served by Plaintiff. ECF No. 62-2.
Defendant claimed the interrogatories include unrelated subparts and exceed the 25 interrogatory
limit of Federal Rule of Civil Procedure 33. ECF No. 62-6. In his Motion, Plaintiff argues that an
interrogatory containing subparts should not be counted multiple times pursuant to Rule 33 if the
1

Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local
Rule 73.02(B)(2)(d), D.S.C., this magistrate judge is authorized to review all pretrial matters in
cases filed under 42 U.S.C. § 1983.

subpart is logically or factually subsumed within and necessarily related to the primary question.
ECF No. 62 at 3. Plaintiff argues that the subparts of its interrogatories “are clearly tied to the
common theme of each interrogatory and should not be counted separately.” Id. at 7. Therefore,
Plaintiff maintains he has only served 20 interrogatories on Defendant which is within the limit
imposed by Rule 33. Id. In response, Defendant disagrees and maintains that separate questions
should be counted as separate interrogatories, though they may be related. ECF No. 64 at 3.
Further, Defendant argues that though subparts may be related to a common theme, that is not
enough to conclude that those subparts should not be counted as discrete and separate from the
initial interrogatory. Id. At the hearing Plaintiff clarified that he was not challenging the
sufficiency of Defendant’s responses to the answered interrogatories, but was seeking an order
compelling Defendant to respond to unanswered interrogatories.
Pursuant to Rule 33(a)(1) of the Federal Rules of Civil Procedure: “Unless otherwise
stipulated or ordered by the court, a party may serve on any other party no more than 25 written
interrogatories, including all discrete subparts.” Federal Rule of Civil Procedure 37 provides that
if a party fails to respond to discovery, the party seeking discovery may move for an order
compelling production. The decision to grant or to deny a motion to compel discovery rests
within the broad discretion of the trial court. See Lone Star Steakhouse & Saloon, Inc. v. Alpha
of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995) (holding the “Court affords a district court
substantial discretion in managing discovery and reviews the denial or granting of a motion to
compel discovery for abuse of discretion.”) (internal citation omitted); LaRouche v. Nat’l Broad.
Co., Inc., 780 F.2d 1134, 1139 (4th Cir. 1986) (holding “[a] motion to compel discovery is
addressed to the sound discretion of the district court.”).
In discussing whether an interrogatory containing subparts should count as one or multiple
interrogatories under Rule 33, the Advisory Committee Notes indicate that “[p]arties cannot evade

this presumptive limitation through the device of joining as ‘subparts’ questions that seek
information about discrete separate subjects.” Advisory Committee’s Note on Fed. Rule Civ.
Proc. 33, 146 F.R.D. 401, 675 (1993). However, the Advisory Committee also noted that “a
question asking about communications of a particular type should be treated as a single
interrogatory even though it requests that the time, place, persons present, and contents be stated
separately for each such communication.” Id. at 675-76. Federal Practice and Procedure
Commentators Wright, Miller and Marcus have looked to advisory committee notes on the subject
and found “an interrogatory containing subparts directed at eliciting details concerning a common

theme should be considered a single question, [and] an interrogatory with subparts inquiring into
discrete areas is likely to be counted as more than one for purposes of the limitation.” 8B Wright,
Miller, and Marcus, Federal Practice and Procedure, § 2168.1 (3d ed. Supp. 2013).
In Mezu v. Morgan State University, the court held: “An interrogatory containing subparts
directed at eliciting details concerning the common theme should be considered a single question, but
an interrogatory with subparts inquiring into discrete areas is more likely to be counted as more than
one for purposes of limitation.” 269 F.R.D. 565, 572-73 (D. Md. 2010) (internal citation omitted). In
determining whether subsequent questions within one interrogatory are subsumed, the court
instructed parties to “examine whether the first question is primary and subsequent questions are
secondary to the primary question. . . .” Id. at 573. Upon examination, genuine subparts should not be
counted as a separate interrogatory, while discrete or separate questions should be counted as
separate under Rule 33. Id. In its application of Rule 33, the Mezu court found that a question about

the positions plaintiff held at Morgan State University, including subparts establishing her hire
date, salary, and supervisors counted as one interrogatory. Id. However other subparts of the
same interrogatory, such as why plaintiff changed positions and pay rates of other faculty
members, were separate questions. Id.

Considering the above authorities, the undersigned has reviewed Plaintiff’s
Interrogatories, ECF No. 62-1, and found that a total of 26 interrogatories were served on
Defendant. Specifically, the undersigned found that interrogatories (1), (6), (7), (8), and (9)
contained more than one question to Defendant and should be considered separate from the
primary question of the numbered interrogatory. However, the other interrogatories should not
be considered separate or more than one question to Defendant because the subparts elicit details
concerning the common theme of the numbered interrogatory. For reasons set forth above as
well as in the next section, Plaintiff’s Motion to Compel is granted, and Defendant is instructed
to answer Plaintiff’s interrogatories completely.
Plaintiff’s Motion to Expand Interrogatories Limit
In his Motion to Expand Interrogatories Limit, Plaintiff seeks an order to “expand the
number of interrogatories allowable per defendant in this case to provide Plaintiff with the full
opportunity to investigate his claims.” ECF No. 62 at 1. Specifically, Plaintiff requests the court
allow him up to 50 interrogatories “based on the complexity of the issues and the over thirtyyears of history involved in Plaintiff’s claims.” Id. at 8. In its response, Defendant disagrees that
the case is “complex” and argues that “Plaintiff has had access for over thirty years to pleadings,
transcripts, records, documents and physical evidence related to the allegations of his Amended
Complaint.” ECF No. 64 at 6. Because Defendant alleges Plaintiff already has pertinent
information necessary to prosecute the case, it requests the court deny Plaintiff’s request. Id.
Pursuant to Rule 33(a)(1), “[l]eave to serve additional interrogatories may be granted to
the extent consistent with Rule 26(b)(2).” Therefore, the principles of Rule 26(b)(2), guide the
court’s decision on whether to grant Plaintiff’s request to expand the interrogatory limit. Based
on the many years of litigation concerning this case and the complexity of the issues involved,

this court will exercise its discretion under Rule 33 and relax the limitation on the number of
interrogatories Plaintiff may serve. Each party will be allowed to propound a total of 35
interrogatories, including all discrete subparts, to the other side in this case. “Neither party
should attempt to circumvent the clear import of this rule by including subparts to an
interrogatory that should count as a numbered interrogatory.” Curtis v. Time Warner Entm’tAdvance/Newhouse P’ship, No. 3:12-CV-2370-JFA, 2013 WL 2099496 at * 1 (D.S.C. May 14,
2013). Accordingly, Plaintiff’s Motion to Expand Interrogatories Limit, ECF No. 62, is granted,
but the interrogatory limit is expanded to 35 rather than the 50 Plaintiff requested.

IT IS SO ORDERED.

June 19, 2014
Florence, South Carolina

Kaymani D. West
United States Magistrate Judge