Soltesz v. Rushmore Plaza Civic Center
Filing
78
ORDER granting defendants' 63 Motion to Compel. Signed by US Magistrate Judge Veronica L. Duffy on 01/16/13. (Duffy, Veronica)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
KYLE SOLTESZ, D/B/A
TOP DOG ENTERPRISES,
Plaintiff,
vs.
RUSHMORE PLAZA CIVIC CENTER,
a political subdivision of the City of
Rapid City, and CITY OF RAPID CITY,
a political subdivision of the State of
South Dakota,
)
)
)
)
)
)
)
)
)
)
)
)
)
CIV. 11-5012-JLV
ORDER GRANTING
DEFENDANTS’ MOTION
TO COMPEL
[DOCKET NO. 63]
Defendants.
INTRODUCTION
This matter is before the court on plaintiff Kyle Soltesz’s complaint
alleging a violation of his constitutional rights and seeking damages therefor
pursuant to 42 U.S.C. § 1983. See Docket No. 1. Mr. Soltesz also asserts state
law claims of breach of lease, conversion, and tortious interference with
business relations. Id. Jurisdiction is premised on the presence of a federal
question, 28 U.S.C. § 1331, and the deprivation of a civil right, 28 U.S.C.
§ 1343.
Defendants filed a motion to compel plaintiff to produce documents in
response to defendants’ requests for the production of documents number one
and two. See Docket No. 63. Plaintiff resists this motion. See Docket No. 66.
The Chief District Judge, the Honorable Jeffrey L. Viken, referred this motion
to this magistrate judge for determination pursuant to 28 U.S.C. § 636(b)(1)(A).
FACTS
The facts pertinent to defendants’ motion are as follows. Plaintiff was a
commercial tenant with defendant the Rushmore Plaza Civic Center (“Civic
Center”). Plaintiff sold food and beverages at the Civic Center. Plaintiff claims
to have been ousted from his leasehold in violation of the terms of his lease and
in violation of South Dakota law.
On August 12, 2011, defendants took the deposition of Kyle Soltesz. See
Docket No. 71-1. During that deposition, Mr. Soltesz testified that his
business, Top Dog Enterprises, filed state sales tax returns. Id. at 2, lines 612. Defendants’ attorney, upon learning this, made an oral request for the
production of documents as follows: “We’d ask for all of the state sales tax
returns from 2004 to the present.” Id. at 2, lines 15-16.
On October 25, 2011, defendants followed up on their oral document
request with formal, written requests for the production of documents. See
Docket No. 65-1. Defendants propounded two separate document requests:
Request for Production No. 1: Please produce copies of all sales
tax reports for Top Dog from 1996 to present.
Request for Production No. 2: Please produce copies of all
documents of correspondence, including but not limited to:
notices, notifications, and letters between the Plaintiff and the
South Dakota Department of Revenue from 1996 to present.
2
See Id. at page 3.
On December 28, 2011, plaintiff served defendants with responses to
these document requests. See Docket No. 65-2. In response to the two
document requests, plaintiff stated “See attached documents, Bates stamped
as TopDog 0220-0222.” Id. at 2. The documents Bates stamped TopDog 02200222 are three pages of spread sheets. Id. at pages 5-7. The origins of the
spread sheet are nowhere apparent on the documents. Id. The documents are
not marked with any logo or other mark which would indicate that the South
Dakota Department of Revenue produced the spreadsheets. Id.
The spread sheets contain seven columns, labeled from left to right as
follows: Period, Gross, Use Taxable, Total State Taxable, State Tax, City Tax,
and Total Tax Due. Id. The “Period” section of these spread sheets indicate
that they cover the time frame from February 2005 up through March 2011.
Id.
On October 3, 2012, defendants’ counsel wrote to plaintiff’s counsel,
stating:
An oral request was made at Kyle Soltesz’s deposition for all of his
state sales tax reports dated 2004 to present. The same was
formally requested in the Defendants’ First Set of Interrogatories
and Request for Production of Documents to Plaintiff dated
October 25, 2011. Please advise as to when I will receive these
documents. If I have not heard from you by Tuesday, October 9
[2012], I will assume they will not be forthcoming and I will file a
Motion to Compel.
See Docket No. 71-3 at page 1.
3
The response of plaintiff’s counsel to this letter was to point out plaintiff’s
production of the spreadsheets. See Docket No. 71-4 at page 1. Plaintiff’s
counsel wrote “If I have missed anything, or I am not understanding the nature
of your request, please let me know, as I believe we have already responded to
your inquiry.” Id.
Defendants’ counsel then wrote back on October 10, 2012, that he was
specifically asking for “sales tax returns and all documents/correspondence
between the Plaintiff and the South Dakota Department of Revenue.” See
Docket No. 65-3 (emphasis supplied). Defendant then clarified its position that
the spreadsheets plaintiff provided were not responsive to either of the
production requests propounded by defendants. Id.
Plaintiff responded on October 11, 2012, by stating that the request for
production did not seek discovery of sales tax “returns,” but rather of sales tax
“reports.” See Docket No. 67-2. Plaintiff asserted that the spreadsheets were
“reports” and that plaintiff had done everything necessary to respond to the
defendants’ discovery requests. Id. As to the request for correspondence,
plaintiff’s counsel informed defendants’ counsel that a request had been made
to the South Dakota Department of Revenue for documents going back to the
year 2005. Id. Plaintiffs’ counsel indicated that they would be in touch when
they had more information about the correspondence. Id.
4
On November 5, 2012, and again on November 19, plaintiff’s counsel
requested from the South Dakota Department of Revenue any
“correspondence” between the department and Top Dog Enterprises. See
Docket Nos. 67-3, page 2; 67-5, page 3.1 If a request for sales tax “reports” or
sales tax “returns” was ever made to the department by plaintiff, that
document has not been placed before this court.
On November 16, 2012, plaintiff’s counsel wrote to defendants’ counsel
saying that “we are still attempting to obtain the requested documents and
correspondence directly from the South Dakota Department of Revenue.” See
Docket No. 65-4. No further communication between the parties has been
supplied. Defendants filed the instant motion to compel on November 16,
2012. See Docket No. 63.
DISCUSSION
A.
Defendants Satisfied Their Obligation to Confer in Good Faith
In their motion, defendants state that “Defendants’ counsel certifies that
he has in good faith conferred with and attempted to resolve this matter with
1
Although the cover letters from plaintiff’s counsel characterize the
request to the Department of Revenue as a request for “documents,” the
authorization to the department from Mr. Soltesz authorized the department to
release only “correspondence.” See Docket No. 67-3, page 2; Docket No. 67-5,
page 2. The department would be limited by the wording of Mr. Soltesz’s
authorization. Therefore, the request was, in reality, only a request for
correspondence, not for any sale tax “returns” or “reports” or any other type of
“document” other than correspondence.
5
Plaintiff’s counsel prior to filing this motion consistent with Fed. R. Civ. P. 37.”
See Docket No. 63, page 1. Plaintiff’s counsel takes issue with this. Because
defendants’ counsel did not respond to plaintiff’s final letter of November 16
prior to filing the motion to compel, plaintiff asserts that defendant did not
satisfy the conferral requirement.
Federal Rule of Civil Procedure 37 provides:
On notice to other parties and all affected persons, a party may
move for an order compelling disclosure or discovery. The motion
must include a certification that the movant has in good faith
conferred or attempted to confer with the person or party failing to
make disclosure or discovery in an effort to obtain it without court
action.
See FED. R. CIV. P. 37(a)(1). Our district has also passed a local rule on this
subject:
A party filing a motion concerning a discovery dispute shall file a
separate certification describing the good faith efforts of the parties
to resolve the dispute.
See DSD LR 37.1.
Here, the parties started out with a misunderstanding. Although
defendants’ counsel orally requested sale tax “returns” during Mr. Soltesz’s
deposition, the written discovery request used the term “reports.” A “report” is
defined as “an account or statement describing in detail an event, situation, or
the like, usually as the result of observation, inquiry, etc.” See
www.dictionary.reference.com/browse/report?s=t (Jan. 15, 2013) (def. #1).
The term “report” is broad enough to encompass sales tax “returns,” but the
6
spreadsheets which plaintiff provided in discovery are certainly “reports” of a
kind too.
However, the term “tax return” has a more specific meaning. In the tax
context, a “tax return” is “a statement, on an officially prescribed form, of
income, deductions, exemptions, etc., and taxes due.” See
www.dictionary.refrence.com/browse/return (Jan. 15, 2013) (def. #24).
When defendants’ counsel later clarified to plaintiff’s counsel that defendants
sought the plaintiff’s sales tax “returns,” not generic “reports,” plaintiff’s
counsel made plain that plaintiff would not provide any sales tax returns. See
Docket No. 67-2. Apparently, it was plaintiff’s position that a “report” is not a
“return” and, thus, because defendants’ document request was not sufficiently
specific in its terminology (despite plaintiff’s then-knowledge of what it was
defendants were getting at), plaintiff would not provide any other
documents. Id.
In fact, although defendants could not have known this at the time,
when plaintiff sent a request for documents to the South Dakota Department of
Revenue, plaintiffs never did request that the department provide copies of Top
Dog’s sales tax returns. Instead, plaintiff limited its request to the department
to “correspondence.” See Docket No. 67-3 page 2; Docket No. 67-5 page 3.
Given plaintiff’s stubborn refusal to provide sales tax returns even once
defendants clarified that that was what they sought, the court is at a loss to
7
understand what additional steps plaintiff believes were needed here. Given
ample time, defendants could have served plaintiff with another request for the
production of documents that specifically asked for plaintiff’s sales tax
“returns,” but the discovery deadline in this matter was November 16,
2012–the same date as the last letter sent by plaintiff’s counsel. See Docket
No. 54, ¶ 2; Docket No. 65-4. Defendants’ resort to this instant motion to
compel is understandable. The court finds that defendants met the
requirement that they attempt in good faith to resolve their discovery dispute
with plaintiff prior to filing a motion to compel.
B.
Whether Defendants’ Motion is Timely
The second argument plaintiff asserts in opposition to defendants’
motion is that defendants’ motion is not timely. Plaintiff relies on paragraph 5
of the district court’s Rule 16 scheduling order which provides as follows:
5.
Motions to compel discovery shall be filed no later than
fourteen (14) days after the subject matter of the motion
arises. Motions to compel discovery shall nto be filed until
the parties have complied with D.S.D. LR 37.1.
See Docket No. 12, page 2, ¶ 5. Plaintiff argues that the dispute between the
parties regarding defendants’ requests for documents became evident when
plaintiff’s counsel sent her letter of October 11, 2012, stating her position that
the term “tax reports” was not sufficient to encompass the term “tax returns.”
See Docket No. 67-2. Because defendants did not file the instant motion to
8
compel until over one month later on November 16, 2012, plaintiff argues that
the motion is not timely.
Federal Rule of Civil Procedure 37 does not include a time limit for when
a motion to compel must be filed. See FED. R. CIV. P. 37. See also Days Inn
Worldwide, Inc. v. Sonia Investments., 237 F.R.D. 395, 396 (N.D. Tex. 2006).
In the absence of a specific time limit, courts may conclude that a motion to
compel is untimely if the movant has unduly delayed. See 8B Charles A.
Wright, Arthur R. Miller, Mary Kay Kane & Richard L. Marcus, Fed. Practice &
Procedure § 2285 (3d ed. 1994) (hereafter “Fed. Practice & Procedure”). If a
motion to compel is filed prior to the expiration of the discovery deadline, it is
generally considered timely. Voter v. Avera Brookings Medical Clinic, 2008 WL
4372707 at *1, Civ. No. 06-4129 (D.S.D. Sept. 22, 2008). The timeliness of a
motion to compel requires balancing the need for the parties to explore ways to
informally settle a discovery dispute among themselves (and thus eliminate the
need for the court’s involvement) against the need to promptly resolve discovery
matters. 8B Fed. Practice & Procedure § 2285. Courts do not ordinarily rigidly
enforce timing issues with regard to motions to compel. Id.
Although Rule 37 does not include a time frame for making motions to
compel, Rule 16 of the Federal Rules of Civil Procedure requires district courts
to issue scheduling orders and those orders must contain a deadline for the
completion of discovery. See FED. R. CIV. P. 16(b)(1) and (3)(A). However, Rule
9
16 also does not contain a deadline for the filing of motions to compel. See
FED. R. CIV. P. 16. Our local rules in this district do not contain a deadline for
the making of motions to compel either. See D.S.D. LR 16.1 and 37.1.
In response to plaintiff’s argument about the timeliness of their motion,
defendants point out two things: (1) their motion to compel was filed prior to
the expiration of the running of the discovery deadline and (2) plaintiff’s last
letter to defendants indicated that plaintiffs would be following up with the
South Dakota Department of Revenue to seek documents responsive to
defendants’ document requests. Defendants suggest that they waited until the
last day of the discovery deadline because they hoped that documents
responsive to their requests would be forthcoming from plaintiff.
The first assertion is not in dispute. Defendants’ motion was filed on the
final day of the discovery deadline.
Defendants’ second assertion is not borne out by a close reading of
plaintiff’s counsel’s October 11, 2012, letter. See Docket No. 67-2. In that
letter, counsel writes about Request No. 1, asserting her position with regard to
“reports” versus “returns.” Id. The next paragraph discusses Request No. 2,
which is the request for “correspondence” between plaintiff and the department
of revenue. Id. As to that request, plaintiff’s counsel asserts her position that
documents dating back to 2005 rather than back to 1996 would be reasonable.
Id. Then, in the final paragraph of the letter, plaintiff’s counsel states “I will be
10
in touch when we have more information regarding Request No. 2.” Id.
(emphasis supplied). There was never any promise, veiled or explicit, that
plaintiff was going to do anything more to comply with defendants’ Request No.
1, the request for Top Dog’s sales tax reports.
It is clear, therefore, that defendants’ motion was not in strict compliance
with the district court’s 14-day time frame for filing motions to compel.
Defendants should have filed their motion to compel as to Request No. 1, the
tax “reports,” within 14 days from the receipt of plaintiff’s October 11, 2012,
letter.
However, a motion may be made outside the deadline established by a
district court’s Rule 16 scheduling order if good cause is established for the
failure to meet the deadline. Sherman v. Winco Firewords, Inc., 532 F.3d 709,
716 (8th Cir. 2008); FED. R. CIV. P. 16(b). Although neither party directly
addresses the good cause standard of Rule 16, it is evident to the court that
here, there is good cause for defendants’ delay.
A less careful reading of plaintiff’s letter of October 11, 2012, might have
mislead defendants to assume that the discovery of Top Dog’s tax returns
might be disclosed after all. The court certainly does not want to issue rulings
that encourage parties to file “hair-trigger” discovery disputes.
Secondly, even if defendants understood that no tax returns were going
to be voluntarily disclosed, defendants might reasonably have wanted to wait to
11
see what “correspondence” plaintiff disclosed between itself and the
Department of Revenue. It could be that the evidence defendants are seeking
in these twin document requests would be satisfied by the correspondence
alone. Given that plaintiff assured defendants that the correspondence was
being sought and would be turned over (back to 2005 at any rate), it was
reasonable for defendants to await those document–if possible–prior to filing
the motion to compel. The court notes that even today, now three months after
plaintiff’s October 11, 2012, assurances, no additional documents, including
no “correspondence,” has been turned over to defendants pursuant to Request
No. 2 (or Request No. 1).
The court also finds that defendants’ delay was not “undue.” The
deadline, if defendants had filed within the 14-day time frame, would have
been October 25, 2012. The motion was actually filed three weeks and one day
after that deadline.
Finally, there is no evidence that plaintiff was prejudiced in any way by
the additional delay. Delay alone, without accompanying prejudice to the
opposing party, is not enough to deny a motion to compel. Cf. Doe v. Cassel,
403 F.3d 986, 991 (8th Cir. 2005) (delay alone, without demonstrated
prejudice, in making an untimely motion to amend a pleading not enough to
deny the motion). In this regard, the court notes that no date has yet been set
12
for the trial of this matter, further negating any chimera of prejudice to plaintiff
resulting from defendants’ delay.
C.
Defendants Are Entitled to The Requested Discovery with
Limitations
As already set forth above, the court holds that the phrase “tax reports”
is broader than the term “tax returns.” Therefore, the court holds that the
latter is a subset of the former and is encompassed by defendants’ request
using the former. Plaintiffs must therefore turn over in discovery all sales tax
returns and accompanying schedules or documents which plaintiff Top Dog
Enterprises filed with the South Dakota State Department of Revenue, as
limited below.
Plaintiff interposes no substantive objections to defendants’ motion to
compel. Instead, plaintiff relies on the procedural arguments discussed above.
Nevertheless, the court has the power to limit discovery on its own if it
determines that the discovery is unduly burdensome, unreasonably cumulative
or duplicative, or that the burden of obtaining the discovery outweighs its likely
benefit considering the needs of the case, the amount in controversy, the
parties’ resources, the importance of the issues at stake in the action and the
importance of the discovery in resolving the issues. See FED. R. CIV. P.
26(b)(2)(C).
Although neither party addresses relevancy, the court notes that
plaintiff’s complaint seeks lost profits, both past and future. See Docket No. 1,
13
page 7, § 1. Sales tax returns would establish one’s gross sales, and thus
would be relevant to the issue of profit. Therefore, the court is not concerned
with relevancy.
However, relevancy is not the sole issue. The court takes notice of the
fact that the parties entered into the lease which is the subject of this litigation
on October 7, 2009, and it was terminated on February 8, 2011. The length of
the parties’ business relationship was just over 16 months in duration.
It is not known to the court why defendants seek the documents
requested in Request Nos. 1 and 2. If it is to get a sense of what Top Dog’s
history of sales were both prior to and during the lease with defendants, tax
returns going back to and including the year 2005 seem more than sufficient to
establish a pattern.
If the discovery is meant to establish the nature of the business entity
Top Dog was, or to discover what representations Top Dog made about its sales
to the Department of Revenue, again, records going back to and including the
year 2005 seem sufficient. Accordingly, although the court will grant
defendants’ motion to compel as to both requests, the time frame for both
requests will be limited to the years from and including 2005 until the present.
14
CONCLUSION
Based on the above discussion, the court hereby
ORDERS that defendants’ motion to compel [Docket No. 63] is granted.
Plaintiff shall fully comply with both discovery requests by producing
documents from and including the year 2005 up through the present. Plaintiff
shall tender such documents to defendants within 30 days of the date of this
order.
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 January 16, 2013.
BY THE COURT:
/s/
Veronica L. Duffy
VERONICA L. DUFFY
UNITED STATES MAGISTRATE JUDGE
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?