Kay et al v. Lamar Advertising of South Dakota, Inc et al

Filing 126

ORDER denying 81 Objections filed by Cody P. Burton, Lamar Advertising of South Dakota, Inc.; denying re 83 Response filed by Deana D. Kay, Richard W. Kay. Signed by Chief Judge Karen E. Schreier on 09/01/2009. (KC)

UNITED STATES DISTRICT COURT D I S T R I C T OF SOUTH DAKOTA W E S T E R N DIVISION R I C H A R D W. KAY and D E A N A D. KAY, husband and wife, Plaintiffs, vs. L A M A R ADVERTISING OF SOUTH D A K O T A , INC., a South Dakota c o r p o r a t io n , and C O D Y P. BURTON, Defendants/ Counter-claimants, vs. R I C H A R D W. KAY, Counter-defendant. ) C I V . 07-5091-KES ) ) ) ) ) ) ) O R D E R DENYING DEFENDANTS' ) O B J E C T I O N TO ORDER ) G R A N T I N G PLAINTIFFS' MOTION ) T O COMPEL RESPONSE TO ) R E Q U E S T S FOR ADMISSION ) ) ) ) ) ) ) )

D e f e n d a n t s , Lamar Advertising of South Dakota and Cody Burton, o b je c t to Magistrate Judge Duffy's order granting plaintiffs' motion to compel r e s p o n s e to requests for admission. Plaintiffs oppose the motion. Defendants' objections are denied. The background does not need to be set out because Magistrate Judge D u f fy 's order fully and accurately describes the relevant factual and p r o c e d u r a l background. See Order Granting Plaintiffs' Motion to Compel, D o ck e t 78, at 1-3. The court will first address plaintiffs' motion to strike d e f e n d a n t s ' objections on the basis of untimeliness. Then the court will

r e v ie w the merits of defendants' objection pursuant to the standard set out in 28 U.S.C. § 636(b)(1)(A). D IS C U S S IO N I. P l a in t i f f s' Motion to Strike Defendants' Objections on the Basis of Untimeliness P l a in t iffs argue that defendants' objections were filed after the ten-day d e a d lin e set out in the magistrate's order. The order states that "[t]he p a r t ie s have ten (10) days after service of this order to file written objections p u r s u a n t to 28 U.S.C. § 636(b)(1), unless an extension of time for good c a u s e is obtained." The order was filed on December 12, 2008, and d e f e n d a n t s filed their objections on December 30, 2008. Rule 6(a) of the Federal Rules of Civil Procedure sets out the procedure fo r computing time. When computing time, "the day of the act, event, or d e f a u l t that begins the period" is to be excluded. Fed. R. Civ. P. 6(a)(1). "[I]ntermediate Saturdays, Sundays, and legal holidays when the period is le s s than 11 days" are to be excluded as well. Fed. R. Civ. P. 6(a)(2). A "legal h o lid a y " includes Christmas Day and "any other day declared a holiday by t h e President, Congress, or the state where the district court is located." Fed. R. Civ. P. 6(a)(4). And three days are added for service after the time p e r i o d would otherwise expire. Fed. R. Civ. P. 6(d). Under Rule 6(a)(1), the day the court order was filed, December 12, is e x c lu d e d . December 12, 2008, fell on a Friday. Thus, the start date for the t e n - d a y period was Monday, December 15. Christmas Day fell on a

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T h u r s d a y , and December 26, 2008, was declared a holiday by the President. Thus, ten days from December 15, excluding weekends and December 25 a n d 26, is December 30. Furthermore, defendants would also be entitled to

t h r e e additional days for service. Defendants filed their objections on D e c e m b e r 30, 2008. This is within the ten-day period. Plaintiffs' motion to s t r i k e on the basis of timeliness is therefore denied. II. D e f e n d a n t s ' Objections to Magistrate Judge Duffy's Order Granting Plaintiffs' Motion to Compel D e fe n d a n ts argue that Magistrate Judge Duffy inappropriately relied o n incorrect facts and evidence and failed to consider additional facts in a r r iv in g at her conclusion. The court's order was based on defendants' fa ilu r e to comply with Rule 36(a)(4), 1 and its reasoning is summed up s u c c i n c t l y where the order stated, Rule 36(a)(4) requires the responding party, before it gives the a n s w e r "I don't know," to state that it has made reasonable i n q u i r y to attempt to find out the answer to the request to admit a n d that it still cannot admit or deny the question after having

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Rule 36(a)(4) reads as follows: I f a matter is not admitted, the answer must specifically deny it or s ta t e in detail why the answering party cannot truthfully admit or d e n y it. A denial must fairly respond to the substance of the m a tt e r ; and when good faith requires that a party qualify an answer o r deny only a part of a matter, the answer must specify the part a d m it te d and qualify or deny the rest. The answering party may a s s e r t lack of knowledge or information as a reason for failing to a d m i t or deny only if the party states that it has made reasonable i n q u i r y and that the information it knows or can readily obtain is i n s u f f ic i e n t to enable it to admit or deny.

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s o u g h t information readily available to it. Defendants have not c o m p l ie d with this directive from Rule 36(a)(4). See Order Granting Plaintiffs' Motion to Compel, Docket 78, at 12. The order t h e n "direct[ed] the defendants to make a reasonable effort to consult in f o r m a t i o n readily available to them which would enable defendants to e i t h e r admit or deny the Kays' requests." Id. at 14. If, after making such inquiry, defendants still cannot admit or d e n y a request, then defendants must: (1) describe with p a r t ic u la r it y what steps they took to attempt to obtain the in f o r m a tio n which would enable them to admit or deny, (2) d e s c r ib e what information they obtained after taking these r e a s o n a b l e steps, and (3) state why the information readily a v a ila b le to defendants did not enlighten them such that they c o u ld either admit or deny the requests. I d . at 14-15. Then, "[i]f defendants are able to in good faith admit part of a r e q u e st , they must do so and then explain why they are unable to admit the r e m a in d e r of the request." Id. at 15. U n d e r 28 U.S.C. § 636(b)(1)(A), a district court judge may reconsider a n y non-dispositive pretrial matter referred to a magistrate judge "where it h a s been shown that the magistrate judge's order is clearly erroneous or c o n tr a r y to law." The court will apply this standard to each of the three s e c tio n s within the order. A . S e c t i o n B, entitled "Requests to Admit Plaintiffs' Injuries" D e f e n d a n t s argue that plaintiffs did not provide defendants with s u f fic ie n t information so they could either admit or deny the requests p e r t a in in g to whether plaintiffs sustained certain injuries as a result of the

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a c c i d e n t . Specifically, defendants argue that the magistrate judge incorrectly a s s u m e d that plaintiffs identified where within plaintiffs' extensive medical r e c o r d s each diagnosis was documented. Whether plaintiffs specifically told defendants where to look is i r r e l e v a n t . Defendants had the documents and information in their p o s s e s s i o n . Defendants were under an obligation to make a reasonable in q u ir y into those documents, as well as other available sources of in f o r m a t i o n , so they could comply with Rule 36(a)(4). Johnson Int'l Co. v. J a c k s o n Nat'l Life Ins. Co., 812 F. Supp. 966, 987 (D. Neb. 1993) ("Rule 36(a) r e q u i r e s a party answering a request for admission to ascertain the truth if t h e ability to do so is `reasonably within his power.' " (quoting 8 C. Wright a n d A. Miller, Federal Practice and Procedure § 2261, at 731-32 (1970)) aff'd i n part and remanded on other grounds, 19 F.3d 431 (8th Cir. 1994). T h e court does not agree with defendants' argument that the order " s u g g e s t s that there is an affirmative obligation by defense counsel to d e t e r m in e whether the medical opinions are correct." Rather, the order d i r e c t s that defendants should comply with the requirements of Rule 3 6 (a )(4 ), namely, that "the answer must . . . state in detail why the answering p a r t y cannot truthfully admit or deny it" after the party "has made r e a s o n a b l e inquiry." Compare Order Granting Plaintiffs' Motion to Compel, D o c k e t 78, at 14 (directing defendants to "describe with particularity what s te p s they took" and "to make a reasonable effort to consult information

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r e a d i ly available to them which would enable defendants to either admit or d e n y the Kays' requests"). Neither does the court accept defendants' a r g u m e n t that they were not obligated to satisfy the requirements in Rule 3 6 ( a ) ( 4 ) because they did not consult, retain, or depose experts that would h a v e assisted in their response to plaintiffs' requests for admission. Thus, t h e court finds that Section B of the order is not clearly erroneous or c o n t r a r y to law. B . Section C, entitled "Requests to Admit the Fact of Plaintiffs' Medical Expenses" Defendants' argument with regard to Section C is similar to the a r g u m e n t above. Defendants contend that the magistrate judge incorrectly a s s u m e d that plaintiffs provided defendants with affidavits detailing the m e d ic a l expenses when in fact plaintiffs only provided summaries of the m e d i ca l expenses with billing information attached. Whether affidavits were i n c l u d e d is not relevant. Defendants were obligated to make reasonable in q u ir y into the billing documents, as well as other available services of in f o r m a t io n , and ascertain the truth if able. See Johnson, 812 F. Supp. at 987. The court will address in further detail one additional aspect of d e f e n d a n t s ' argument with regard to the requests to admit that deal with p l a i n t i f f s ' medical expenses. Defendants argue that they specifically r e q u e s t e d documents from plaintiffs that would have established plaintiffs' m e d i c a l expenses, but the documents were never delivered to defendants.

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H e r e , defendants argue that the order granting plaintiffs' motion to compel e r r o n e o u s l y assumed that plaintiffs had in fact received the documents. The magistrate judge's order did not rely on whether or not defendants h a d received the documents from plaintiffs. In fact, the order specifically r e c o g n i z e d that "defendants have not been given all of plaintiffs' medical b illin g records." See Order Granting Plaintiffs' Motion to Compel, Docket 78, a t 15. Rather, the magistrate judge found that "defendants could partially a d m it that portion of requests . . . covered by the medical bills defendants do h a v e ." Id. The order's requirement that defendants "partially admit" the p o r t io n s of the requests for admission "that they are able to verify with r e c o r d s currently in their possession" is consistent with Rule 36(a)(4)'s r e q u ir e m e n t that "when good faith requires," plaintiffs must "qualify an a n s w e r or deny only a part of a matter." Thus, the court finds that Section C o f the order is not clearly erroneous or contrary to law. C . S e c t i o n D, entitled "Requests to Admit Causation of Medical E x p e n s e s , and the Reasonableness and Necessity of Plaintiff's Medical Expenses" F in a l ly , with regard to Section D of the order, defendants' arguments a r e similar to the other sections. The order states the same requirements f o u n d in Rule 36(a)(4) for the same reasons set forth in the other sections. This court's reasoning and conclusions regarding Sections B and C apply to d e f e n d a n t s' arguments pertaining to Section D. Thus, the court finds that S e c t io n D of the order is not clearly erroneous or contrary to law.

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D e f e n d a n t s again contend that they were not provided with affidavits s ig n e d by plaintiffs verifying that the expenses were reasonably and n e c e s s a r i l y incurred by them due to their injuries sustained in the accident. Defendants argue that without plaintiffs' verification, they cannot admit or d e n y that the expenses were reasonable or necessary as a result of the a c c id e n t . As discussed above, the fact that defendants were not given a d d i t i o n a l information from plaintiffs does not relieve them of their o b l ig a t i o n s under Rule 36(a)(4). See Johnson Int'l Co., 19 F.3d at 439 n.9. Defendants need to make their own assessment of whether the medical e x p e n s e s are reasonable or necessary as a result of the accident independent o f plaintiffs' assertions. The order requires defendants to "either admit or deny the requests, a d m i t partially, or, in the alternative, provide the three-part information r e f e r e n c e d above regarding their attempts to consult information reasonably av ailab le to them in order to formulate an admission or denial and why they are still unable to admit or deny, even partially." See Order Granting P la in t iffs ' Motion to Compel, Docket 78, at 17 (emphasis added). As d i s c u s s e d above, these requirements as set out in the order are in a c c o r d a n c e with the requirements found in Rule 36(a)(4). Accordingly, it is hereby

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O R D E R E D that plaintiffs' motion to strike defendants' objection to the o r d e r granting plaintiffs' motion to compel on the basis of untimeliness ( D o c k e t 83) is denied. IT IS FURTHER ORDERED that defendants' objections to the order g r a n t i n g plaintiffs' motion to compel (Docket 81) is denied. Defendants shall s e r v e amended responses to all of plaintiffs' requests to admit within 20 days o f this order and such responses shall conform to Fed. R. Civ. P. 36(4). Dated September 1, 2009. BY THE COURT:

/s/ Karen E. Schreier K AR E N E. SCHREIER C H I E F JUDGE

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