United States of America, for the use and benefit of Ash Equipment Co., Inc. et al v. Morris, Inc. et al

Filing 115

ORDER granting 95 Motion to Compel. Signed by US Magistrate Judge Veronica L. Duffy on 9/6/2016. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA, FOR
THE USE AND BENEFIT OF ASH
EQUIPMENT CO., INC. D/B/A
AMERICAN HYDRO; AND ASH
EQUIPMENT CO., INC., A MARYLAND
CORPORATION;

4:14-CV-04131-LLP

ORDER GRANTING
PLAINTIFF’S MOTION TO COMPEL
MORRIS, INC.

Plaintiffs,
DOCKET NO. 95
vs.
MORRIS, INC., A SOUTH DAKOTA
CORPORATION; UNITED FIRE AND
CASUALTY COMPANY, AN IOWA
CORPORATION; AND RED WILK
CONSTRUCTION, INC., A SOUTH
DAKOTA CORPORATION;
Defendants.

INTRODUCTION
This is a Miller Act action (40 U.S.C. § 3133(b)(3)(B)), brought by the
United States of America for the use and benefit of Ash Equipment Company,
Inc., doing business as American Hydro (“Hydro”). Defendants are Morris, Inc.
(“Morris), United Fire and Casualty Company (“UF&CC), and Red Wilk
Construction, Inc. (Red Wilk). Pending before the court is a motion filed by
Hydro to compel Morris to provide certain discovery. See Docket No. 95. The

presiding district judge, the Honorable Lawrence L. Piersol, referred this motion
to this magistrate judge for a decision. See Docket No. 98.
FACTS
Defendant Morris contracted with the United States Army Corps of
Engineers (“the Corps”) to do work on the Fort Randall Dam spillway at
Pickstown, South Dakota. Morris obtained a Miller Act payment bond on the
project from defendant UF&CC in the amount of $7,472,670.25. The payment
bond obligated Morris and UF&CC jointly and severally to guarantee payment
to any subcontractor of Morris’ who furnished labor and materials on the
project as well as to persons who had a direct contractual relationship with
Morris on the project.
Part of the project required concrete removal using hydrodemolition
methods as required by the Corps in its project plans and specifications.
Morris subcontracted this work to Red Wilk, who in turn subcontracted with
Hydro. Red Wilk promised to pay Hydro for Hydro’s work on the project within
10 working days after Morris paid Red Wilk on monthly progress payments.
Hydro brought suit after Red Wilk allegedly failed to pay for certain claims
made by Hydro for completed work on the project. Hydro gave notice to Morris
that it had not been paid. Hydro’s first notice to Morris claims amounts
unpaid of $520,135.00; its supplemental notice claimed unpaid amounts of
$1,168,018.49. In its complaint, Hydro asserts a breach of contract claim
against Red Wilk, an equitable claim in quantum meruit against Morris, and
claim against the UF&CC bond.
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Morris responded to this lawsuit by filing a crossclaim for indemnity
against Red Wilk, asserting that Red Wilk must indemnify Morris for any
monies Morris must pay to Hydro. Red Wilk asserted a compulsory
counterclaim against Hydro, asserting that the prime contract was part and
parcel of the contract between Red Wilk and Hydro. Red Wilk further asserted
that Hydro did defective and/or incomplete work pursuant to its contract with
Red Wilk.
Pursuant to FED. R. CIV. P. 36, Hydro served Morris with requests for
admission on April 30, 2016. See Docket No. 95. On June 3, 2016, Morris
objected to those requests as allegedly untimely under the district court’s
scheduling order. See Docket No. 105 at p. 6.

The instant motion was filed,

which Morris resists. See Docket No. 105.
DISCUSSION
A.

Meet and Confer Requirement
Before a party may make a motion to compel another party to make

discovery or disclosure, the movant must certify that they have in good faith
conferred or attempted to confer with the opposing party from whom the
discovery or disclosure is sought in an attempt to resolve the disagreement
without court intervention. See FED. R. CIV. P. 37(a)(1). Hydro alleges that it
has complied with this requirement. Morris does not dispute this precondition.
The court, then, turns to the merits.

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B.

Hydro’s Motion to Compel
At the time Hydro served Morris with its requests to admit, the district

court had established May 31, 2016, as the deadline for discovery. See Docket
No. 59. The court’s order directed that “all fact discovery shall be commenced
in time to be completed by May 31, 2016.” Id. at p. 2, ¶ 3. Subsequently, on
July 11, 2016, the district court—at the parties’ stipulation—extended the
deadline to finish expert discovery to September 15, 2016. See Docket No. 99.
In their stipulation, the parties also agreed that certain regular discovery could
take place outside the May 31, 2016, discovery. See Docket No. 92. This court
also extended the discovery deadline to September 2, 2016, in connection with
an order granting a motion to compel as to certain matters. See Docket No.
107. Trial in this matter is not scheduled to commence until July 25, 2017,
nearly one year from now. See Docket No. 99.
Hydro’s discovery requests consist of 42 discrete requests to admit. See
Docket No. 97-1. Twelve of these requests are simply of an evidentiary
foundational nature: they request Morris to admit that each exhibit labeled A
through L, inclusive, is an authentic and genuine copy of the document it
purports to be. Id. The other 30 requests are substantive requests about the
content or creation of the 12 exhibits. Id.
Morris’ timeliness objection to these requests is based on the following
assessment: Rule 36 allows 30 days to respond to requests for admission, but
the court may order a shorter or longer time for responding. See FED. R. CIV. P.
36(a)(3). Morris claims Hydro served these requests late because, although 30
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days from April 30, 2016, is May 30, 2016, and, therefore, within the district
court’s scheduling order, Morris argues three additional days must be added
for mailing pursuant to FED. R. CIV. P. 5(b)(2)(C) and 6(d). Furthermore,
because May 30, 2016, was a federal holiday (Memorial Day), Morris argues
that the three days are added onto May 31, not May 30, thus making the
responses due June 4. This is three days after the district court’s scheduling
order and, therefore, Morris argues the requests were not timely served and it
need not respond to them.
This case has been marred by a plethora of discovery disputes. No one
party is solely responsible for the petty disputes that have arisen, but there
have been more such disputes than should be necessary. Morris does not
establish that it would suffer any prejudice from having to respond to these
discovery requests. The discovery deadline was already punctured almost to
the point of permeability by the parties’ stipulations concerning discovery and
this court’s own order extending discovery. Hydro is asking the court to forgive
the tardiness, if any, of its service of these requests. Morris’ responses to the
requests will serve to narrow the issues for trial and to make the introduction
of evidence at trial more streamlined. Finally, the court has the discretion to
order Morris to respond to the requests in a shorter or longer time than allowed
by Rule 36. The court so orders.
CONCLUSION AND ORDER
Good cause appearing, it is hereby

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ORDERED that plaintiff’s motion to compel against defendant Morris
Construction, Inc. [Docket No. 95] is granted in its entirety. Given that Morris
had the full 30 days to respond initially, and then has had the entirety of this
summer to consider its responses while the motion to compel was pending, the
court orders Morris to provide responses to Hydro’s requests to admit no later
than close of business on Friday, September 9, 2016. Morris may serve its
responses electronically for purposes of meeting this deadline and follow up
with hard copies within 5 business days thereafter.
NOTICE OF RIGHT TO APPEAL
Pursuant to 28 U.S.C. ' 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. ' 636(b)(1)(A),
unless an extension of time for good cause is obtained. See FED. R. CIV. P.
72(a); 28 U.S.C. ' 636(b)(1)(A). Failure to file timely objections will result in
the waiver of the right to appeal questions of fact. Id. Objections must be
timely and specific in order to require review by the district court. Thompson
v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir.
1986).
DATED September 6, 2016.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge
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