Thompson v. Butte County, South Dakota et al

Filing 71

AMENDED ORDER (amended as to caption) re 54 MOTION to Dismiss Plaintiff's Complaint or, in the Alternative, Motion for Default Judgment filed by 5 John Doe Commissioners, Fred Lamphere, Timothy Vanderheide, Gary Bruner, Doug Parrow, Tristan Clements, Heather Plunckett, Butte County, SD. Signed by US Magistrate Judge Veronica L. Duffy on 10/29/13. (Duffy, Veronica)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
JAMES THOMPSON,
Plaintiff,
vs.
BUTTE COUNTY, SOUTH DAKOTA, as
an individual respondant superior for
county officials;
BUTTE COUNTY SHERIFF
FRED LAMPHERE;
DEPUTY GARY BRANER;
DEPUTY TRISTAN CLEMENTS;
DEPUTY DOUG PARROW;
BUTTE COUNTY STATES ATTORNEY;
HEATHER PLUNKETT;
ASST. TIMOTHY VANDER HEIDE;
Defendants.

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CIV. 12-5050-JLV

AMENDED
REPORT & RECOMMENDATION
AND ORDER DENYING
DEFENDANTS=
MOTION TO DISMISS
AND GRANTING DEFENDANTS’
MOTION FOR SANCTIONS

INTRODUCTION
On July 23, 2012, plaintiff James Thompson, appearing pro se, filed a
complaint against defendants above-named, alleging violations of his
constitutional rights by defendants, although in truth, the court is at a loss to
understand exactly what acts took place that Mr. Thompson bases his claims on
and what constitutional rights were violated by which acts. See Docket No. 1.
Previously, the court dismissed the three judicial defendants, the Honorable
Circuit Court Judge Randall Macy, the Honorable Circuit Court Judge John

Bastian, and the Honorable Magistrate Judge Michelle Percy. See Docket Nos.
35 and 57. Now pending before the court is a motion to dismiss
Mr. Thompson=s complaint against the remaining defendants or, in the
alternative, a motion for default judgment, or for sanctions.

See Docket No. 54.

FACTS
The defendants= motion to dismiss is based on Mr. Thompson=s refusal to
engage in the discovery process. The court notes that early on in this litigation,
the court sent to Mr. Thompson copies of Federal Rules of Civil Procedure 12 and
26-37. In addition, the court supplied Mr. Thompson with a complete copy of
this district=s local rules of civil procedure. It is this court=s entirely reasonable
expectation that Mr. Thompson would have read these documents.
On April 15, 2013, defendants served Mr. Thompson with written
interrogatories and requests for the production of documents. See Docket No.
56-2. Defendants, like this court, sought to understand what, exactly,
Mr. Thompson is claiming in this lawsuit. The questions in the discovery
requests are straight forward. For example, the third interrogatory states as
follows:
3.

In your Complaint dated November 2, 2012, you sued Butte
County.
(a)
State the specific claim that you are making against
Butte County;
(b)
State the specific facts and dates that you allege
support your claim against Butte County;
(c)
Are you claiming money damages against Butte County
as a result of your claim against the County? If so,
state the dollar amount of any such damages and the
facts that support such claim.
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(d)

Do you have any written documents that you claim will
support your claims against Butte County, including
any damages? If so, please produce these documents.

See Id. The interrogatories posed similar questions as to each named
defendant. The discovery requests explained that defendants were making
these requests pursuant to Federal Rule of Civil Procedure 33 and 34. The
instructions accompanying the discovery requests explained to Mr. Thompson
that he was required to serve answers, under oath, to the questions within 30
days. Id.
Counsel for the defendants also sent a cover letter to Mr. Thompson which
accompanied the April 15, 2013, discovery requests. See Docket No. 56-1. In
that letter, counsel explained that he was enclosing a computer disk containing
discovery to which Mr. Thompson was entitled and that the documents on the
computer disk were BATES stamped BUTTE CO. 0001 through 1196. Id.
Counsel also requested that Mr. Thompson come to his office to have his
deposition taken once he had supplied the answers to the enclosed discovery
requests. Id.
On April 24, 2013, Mr. Thompson served defense counsel with a document
styled AStatement in Lieu of Interrogatories.@ See Docket No. 59-1. The
statement was not under oath and did not answer all of the questions posed in
defendants= discovery requests. Id. Mr. Thompson=s Statement in Lieu of
Interrogatories did not interpose legal objections to the discovery either. Id. In
the Statement, Mr. Thompson expressed a willingness to have his deposition

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taken on the condition that all defendants Alikewise be available for depositions
before the Court=s Reporter at that time.@
On April 30, 2013, counsel for defendants wrote to Mr. Thompson and
informed him that his Statement was not an acceptable substitute for answering
defendants= interrogatories because the Statement did not address all of
defendants= questions. See Docket No. 56-3. Defense counsel warned
Mr. Thompson that he needed to answer all of defendants= questions or a motion
to dismiss would be forthcoming. Id. No further written responses were
rendered by Mr. Thompson.
Instead of immediately moving to dismiss, counsel for defendants tried
another tack. He served Mr. Thompson with a notice of his deposition for June
13, 2013, perhaps hoping that an oral dialogue with Mr. Thompson would shed
some light on his claims. See Docket No. 56-5. In the letter accompanying the
Notice, defense counsel expressed the hope that Mr. Thompson would orally tell
him the facts supporting his claims so that the lawsuit could proceed. See
Docket No. 56-4.
Mr. Thompson arrived for his deposition at the appointed date, time, and
location, but immediately left, refusing to submit to his deposition because
defense counsel had not arranged for all the named defendants to be present at
the same time so that Mr. Thompson could depose them. It should be noted
that Mr. Thompson never, at any time, served defense counsel or defendants
with a notice for any of their depositions. Mr. Thompson did not hire a court

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reporter and arrange for the reporter=s presence on June 13, 2013. Defendants
now move to dismiss Mr. Thompson=s complaint or, in the alternative, for default
judgment against him or for sanctions.
DISCUSSION
Defendants’ motion to dismiss or for default judgment is premised on
Federal Rule of Civil Procedure 37. Part (a) of that rule provides in pertinent
part as follows:
(a) Motion for an Order Compelling Disclosure or Discovery
(1) In General. On notice to other parties . . . a party may move
for an order compelling disclosure or discovery. . . .
....
(2) Specific Motions.
....
(B) To Compel a Discovery Response. A party seeking
discovery may move for an order compelling an answer,
designation, production or inspection. This motion may be
made if:
(i) a deponent fails to answer a question asked [in an oral
deposition] under Rule 30 . . .;
....
(iii) a party fails to answer an interrogatory submitted under
Rule 33; or
(iv) a party fails to respond that inspection [of requested
documents] will be permitted—or fails to permit
inspection—as requested under Rule 34.
See Fed. R. Civ. P. 37(a)(1) and (2). An incomplete or evasive answer to a
discovery request is treated the same as failing or refusing to answer. See
Fed. R. Civ. P. 37(a)(4). If the motion is granted, the party who failed to
provide the discovery requested must pay the attorney’s fees and costs
occasioned by the making of the motion. See Fed. R. Civ. P. 37(a)(5).

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Part (b) of Rule 37 deals with a party’s failure to comply with a court
order requiring disclosure or answers to discovery. See Fed. R. Civ. P.
37(b). Part (b) provides in pertinent part as follows:
(b) Failure to Comply with a Court Order.
....
(3) Sanctions in the District Where the Action is Pending.
(A) For Not Obeying a Discovery Order. If a party . . . fails to
obey an order to provide or permit discovery, including an
order under Rule 26(f), 35, or 37(a), the court where the
action is pending may issue further just orders. They may
include the following:
....
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient
party; or
(vii) treating as contempt of court the failure to obey any
order except an order to submit to a physical or mental
examination.
See Fed. R. Civ. P. 37(b)(3).
As can be seen from the above, dismissal or default judgment are not
remedies provided for the mere failure or refusal to respond to a party’s
discovery request. See Fed. R. Civ. P. 37(a) and (b). Instead, the
appropriate remedy is for the court to issue an order compelling the
refusing party to provide the discovery and to pay the moving party’s
attorney’s fees and costs as sanctions. See Fed. R. Civ. P. 37(a). The act
of dismissing a lawsuit or entering default judgment is reserved for those
occasions where a party refuses to comply with a court’s order requiring
them to produce discovery. See Fed. R. Civ. P. 37(b); see also 8A Charles
A. Wright, Arthur R. Miller & Richard L. Marcus, Fed. Practice &

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Procedure, § 2289, at 669 (2d ed. 1994) (stating that “Rule 37(b) usually
has no application if there has not been a court order.”). Mr. Thompson
has not failed to abide by an order of the court at this juncture of the
proceedings, so dismissal and default judgment are inappropriate. See
Fed. R. Civ. P. 37(a) and (b).
Based on the above, the court recommends denying defendants’
request for dismissal or default judgment as a sanction against Mr.
Thompson for refusing to participate in discovery. However, the court will
grant sanctions. Mr. Thompson’s refusals to provide discovery thus far
are unjustified. Both this court and defendants’ counsel explained to Mr.
Thompson his obligations under the rules governing discovery and this
court personally provided Mr. Thompson with copies of the applicable
rules. Accordingly, the court will entertain a motion by defense counsel
for his attorney’s fees in preparing this motion and for the court reporter
expenses associated with the failed attempt to depose Mr. Thompson.
The court encourages Mr. Thompson to read the rules that were
provided to him and to abide by those rules. Defense counsel’s discovery
requests were entirely proper. It is incumbent on Mr. Thompson to now
provide proper answers.
If Mr. Thompson wishes to depose any of the remaining defendants,
he must make arrangements to hire a court reporter, and provide
reasonable advance notice to the person to be deposed as to the date, time,

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and location of the deposition. The noticing up of Mr. Thompson’s
deposition does not involve a reciprocal responsibility on the part of
defendants to make arrangements for their own depositions at the same
time. Depositions of persons who are not parties to the lawsuit are
governed by Fed. R. Civ. P. 45.
Accordingly, based on the foregoing, it is hereby
ORDERED that Mr. Thompson shall, within 30 days of the date of this
order, provide proper answers, under oath, to defendants’ interrogatories in full
compliance with Fed. R. Civ. P. 33. It is further
ORDERED that Mr. Thompson shall, within 30 days of the date of this
order, provide proper responses to defendants’ requests for the production of
documents in full compliance with Fed. R. Civ. P. 34. It is further
ORDERED that Mr. Thompson shall cooperate in the taking of his own
deposition upon receiving reasonable notice from defendants of the time, date
and place of taking that deposition in full compliance with Fed. R. Civ. P. 30.
* * * *
Mr. Thompson is hereby placed on notice that his failure to comply
with the above three orders may subject him to the sanction of dismissal of
all or part of this action, the entry of default judgment against him, or
contempt proceedings against him.
*

*

*

Finally, it is hereby

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*

ORDERED that if defendants wish to seek monetary sanctions against Mr.
Thompson for the bringing of this motion, they must submit a motion for
sanctions and an affidavit and supporting documentation within 14 days of the
date of this order. Mr. Thompson may then file a response, if he wishes, within
14 days of the date of defendants’ motion for attorney’s fees and costs.
Defendants may file a reply, if desired, within 14 days after receipt of any
response by Mr. Thompson to the motion.
NOTICE OF RIGHT TO APPEAL
Pursuant to 28 U.S.C. ' 636(b)(1)(A), any party may seek reconsideration
before the district court of the portion of this order compelling Mr. Thompson to
provide discovery responses by 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).
Pursuant to 28 U.S.C. § 636(b)(1)(B), any party may seek de novo
reconsideration before the district court of the portion of this opinion denying
defendants’ motion to dismiss or for default judgment. The parties have
fourteen (14) days after service of this opinion to file written objections pursuant
to 28 U.S.C. § 636(b)(1)(B), unless an extension of time for good cause is
obtained. See Fed. R. Civ. P. 72(b).

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Failure to file timely objections to either portion of this opinion 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 October 29, 2013.
BY THE COURT:
/s/

Veronica L. Duffy

VERONICA L. DUFFY
UNITED STATES MAGISTRATE JUDGE

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