Lessert v. BNSF Railway Company

Filing 182

ORDER denying as moot 70 Motion to Compel; denying as moot 73 Motion to Compel; denying as moot 76 Motion to Compel; denying as moot 79 Motion to Compel; granting in part and denying in part 92 Motion to Compel. Signed by US Magistrate Judge Daneta Wollmann on 5/27/2020. (Wollmann, Daneta)

Case 5:17-cv-05030-JLV Document 182 Filed 05/27/20 Page 1 of 11 PageID #: 6145

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
GERALD LESSERT, Special
Administrator of the Estate of
RICHARD CLAYMORE LESSERT,
Deceased,

5:17-CV-05030-JLV
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTIONS TO COMPEL
(DOCS. 70, 73, 76, 79, 92)

Plaintiff,
vs.
BNSF RAILWAY COMPANY, a
Corporation,
Defendant.

This is an action brought under the Federal Employers’ Liability Act, 45
U.S.C. §§ 51, et seq. Plaintiff filed various motions relating to discovery
disputes. (Docs. 70, 73, 76, 79, 92). United States District Court Judge
Jeffrey L. Viken referred the case to this magistrate judge for the purpose of
resolving pretrial motions. (Doc. 121). In support of the motions, Plaintiff filed
memorandums in support of the motions along with supporting attachments.
(Docs. 71, 74, 77, 81, 93, 125, 127, 128). Defendant opposes the motions and
submitted memorandums and attachments in opposition to the motions.
(Docs. 101, 102, 119, 120). These collective submissions total in excess of
2,000 pages of filings in order to address the 5 discovery disputes before the

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court.1 Both parties have blatantly violated the local rule regarding page limits
on briefing and attachments. The parties are put on notice that any future
violation of the local rule may be subject to the court rejecting any filing which
violates D.S.D. Civ. LR 7.1(B)(1).
I.

Motions to Compel Discovery
A. Docket 70 – Discovery Regarding Equipping Lookouts.
Subsequent to Plaintiff filing the motion to compel, the court issued its

Report and Recommendation setting forth its belief that the district court
should issue summary judgment in favor of Plaintiff on the issue of negligence.
(Doc. 180). The district court has given notice to the parties of its intention to
address the issue of causation. The discovery which Plaintiff’s motion to
compel seeks pertains solely to the issue of negligence. If the district court
adopts this court’s recommendation finding BNSF negligent, Plaintiff need not
make a further showing to the jury that BNSF was negligent in any other
fashion. Accordingly, the discovery sought by Plaintiff is no longer relevant to
any issues remaining in the case. Therefore, the court denies the motion to
compel discovery regarding equipping the lookouts as moot, without prejudice.
If the district court declines to adopt the recommendation, Plaintiff may refile
his motion.

The local rules provide “briefs and any attachments . . . must not exceed 25 pages or 12,000
words unless prior approval has been obtained from the court.” D.S.D. Civ. LR 7.1(B)(1)
(emphasis added).
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B. Docket 73 – Discovery Regarding Training, Education,
Instruction & Certification.
As with the discovery sought by Plaintiff in Docket 70, the discovery
which Plaintiff’s motion to compel seeks in Docket 73, pertains solely to the
issue of negligence. If the district court adopts this court’s recommendation
finding BNSF negligent, Plaintiff need not make a further showing to the jury
that BNSF was negligent in any other fashion. Accordingly, the discovery
sought by Plaintiff is no longer relevant to any issues remaining in the case.
Therefore, the court denies the motion to compel discovery regarding training,
education, instruction and certification as moot, without prejudice. If the
district court declines to adopt the recommendation, Plaintiff may refile his
motion.
C. Docket 76 – Discovery Regarding Production of Visual and Audio
Representation of Scene of Incident and Section Truck.
Plaintiff seeks discovery of visual and audio depictions of the scene of the
incident and of the section truck taken shortly after the accident. BNSF
contends that it has given Plaintiff “those photographs, videos, and audios from
the scene of the incident immediately after the accident.” (Doc. 101 at p. 19).
In light of this response, Plaintiff concedes that this renders the discovery
motion moot. (Doc. 125 at p. 40). Accordingly, the court denies the motion as
moot.
D. Docket 79 – Discovery Regarding BNSF’s Representation of
Regulations in Railroad Rules.
Like the discovery motions at Docs. 70 and 73, Plaintiff seeks discovery
in Docket 79 which pertains solely to the issues of negligence. If the district
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court adopts this court’s recommendation finding BNSF negligent, Plaintiff
need not make a further showing to the jury that BNSF was negligent in any
other fashion. Accordingly, the discovery sought by Plaintiff is no longer
relevant to any issues remaining in the case. Therefore, the court denies the
motion to compel discovery regarding representation of regulations in railroad
rules as moot, without prejudice. If the district court declines to adopt the
recommendation, Plaintiff may refile his motion.
II.

Motion to Determine Sufficiency of Answers & Objections (Doc. 92)
Plaintiff served two sets of Requests for Admissions on BNSF. Although

BNSF responded to the requests for admissions, Plaintiff believes the responses
are either insufficient or raise improper objections. Plaintiff asks the court for
an order determining the sufficiency of BNSF’s responses and ordering BNSF to
respond without objection.
A. Scope of Rule 36
Rule 36 of the Federal Rules of Civil Procedure allows one party to serve
another party with requests to admit certain things. See FED. R. CIV. P. 36.
The rule is “intended to expedite the trial and to relieve the parties of the cost
of proving facts that will not be disputed at trial, the truth of which is known to
the parties or can be ascertained by reasonable inquiry.” United States v.
Schiefen, 926 F. Supp. 877, 883 (D.S.D. 1995) (quoting 8A Charles A. Wright,
Arthur R. Miller, & Richard L. Marcus, Fed. Practice & Procedure, § 2252 (2d
ed. 1994)) (emphasis added).

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Rule 36 provides in pertinent part as follows:
(a) Scope and Procedure
(1) Scope. A party may serve on any other party a written
request to admit, for purposes of the pending action only,
the truth of any matters within the scope of Rule 26(b)(1)
relating to:
(A) facts, the application of law to fact, or opinions
about either; and
(B) the genuineness of any described documents.
...
(4) Answer. If a matter is not admitted, the answer must
specifically deny it or state in detail why the answering
party cannot truthfully admit or deny it. A denial must
fairly respond to the substance of the matter; and when
good faith requires that a party qualify an answer or
deny only a part of a matter, the answer must specify
the part admitted and qualify or deny the rest. The
answering party may assert lack of knowledge or
information as a reason for failing to admit or deny only
if the party states that it has made reasonable inquiry
and that the information it knows or can readily obtain
is insufficient to enable it to admit or deny.
...
(6) Motion Regarding Sufficiency of an Answer or
Objection. The requesting party may move to determine
the sufficiency of an answer or objection. Unless the
court finds an objection justified, it must order that an
answer be served. On finding that an answer does not
comply with this rule, the court may order either that
the matter is admitted or that an amended answer be
served. The court may defer its final decision until a
pretrial conference or a specified time before trial. Rule
37(a)(5) applies to an award of expenses.
FED. R. CIV. P. 36(a) (emphasis added).

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The scope of Rule 36 is limited to those matters which are: (1) within the
scope of FED. R. CIV. P. 26(b)(1); and (2) relate to a fact, the application of law to
fact, opinions about either, or to the genuineness of a document. See FED. R.
CIV. P. 36(a)(1)(A), (B). The scope of Rule 26(b)(1) is broad:
Unless otherwise limited by court order, the scope of discovery is as
follows: Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense and
proportional to the needs of the case, considering the importance of
the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues,
and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.
FED. R. CIV. P. 26(b)(1). Therefore, requests to admit can be served
regarding any matter that is relevant to any party’s claim or defense so long as
the request relates to a fact, application of law to a fact, opinions about either,
or the genuineness of a document. See FED. R. CIV. P. 36(a)(1).
If the subject matter of a request to admit is proper under Rule 36(a)(1),
and the responding party does not admit the request, the responding party
must explain in detail why it cannot admit the request. See FED. R. CIV. P.
36(a)(4). If the responding party can affirmatively admit or deny part of a
request, he must do so, and then explain–in detail–why he cannot admit the
remaining part of the request. Id. Finally, the responding party may not refuse
to admit or deny on the basis that it lacks the knowledge to be able to do so
unless the responding party also states that it has made reasonable inquiry
and was unable to obtain the information that would enable it to admit or
deny. Id.
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If a party who has served requests to admit is required to file a motion to
compel in order to obtain answers to the requests, the provisions of Rule
37(a)(5) are applicable. See FED. R. CIV. P. 36(a)(6). Rule 37(a)(5) states that if
the court grants a motion to compel, or if the requested discovery is provided
after a motion to compel has been filed, “the court must, after giving an
opportunity to be heard, require the party or deponent whose conduct
necessitated the motion, the party or attorney advising that conduct, or both to
pay the movant’s reasonable expenses incurred in making the motion,
including attorney’s fees.” FED. R. CIV. P. 37(a)(5) (emphasis added). The
award of expenses is mandatory unless the court finds that the moving party
failed to confer in good faith with the responding party prior to filing the
motion, the responding party’s refusal to respond was substantially justified, or
other circumstances make an award of expenses unjust. Id.
With these guidelines in mind, the court turns to an analysis of the
requests to admit served by Plaintiff on Defendant in this case.
B. Plaintiff’s 1st Set of Requests for Admissions – Nos. 12, 13, 17, 24,
40, 45, 54, 90, and 95
In each of these requests for admission, Plaintiff seeks an admission
from BNSF as to whether Richard Lessert fell within various definitions
(employer, employee, or lookout) within the meaning of 49 C.F.R. §§ 214.315 or
49 C.F.R. § 214.7; whether BNSF did or did not provide the proper briefing;
and whether Doug Schmitz failed to keep an adequate lookout for the train
which struck and killed Lessert.

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BNSF either objected to each of these requests for admission or denied
by asserting the same arguments it set forth in its briefings pertaining to the
motions for partial summary judgment.
Each of the requests for admissions pertains solely to the issue of
negligence. If the district court adopts this court’s recommendation finding
BNSF negligent, Plaintiff need not make a further showing to the jury that
BNSF was negligent in any other fashion. Accordingly, the discovery sought by
Plaintiff is no longer relevant to any issues remaining in the case, as Plaintiff
need not make a further showing to the jury that BNSF was negligent in any
other fashion. Therefore, the court denies the motion to determine the
sufficiency of BNSF’s response to Plaintiff’s 1st Set of Requests for Admissions
as identified above as moot, without prejudice. If the district court declines to
adopt the recommendation, Plaintiff may refile his motion.
C. Plaintiff’s 2nd Set of Requests for Admissions – Nos. 3 and 14.
In Plaintiff’s second set of requests for admissions, he sought information
regarding damages. Specifically, the requests and responses are as follows:
REQUEST FOR ADMISSION NO. 3: Vada Lessert is the surviving
widow of Richard “Smoke” Lessert within the meaning of 45 U.S.C.
§ 51.
Defendant’s Response: BNSF objects to Request No. 3 as calling
for a legal determination and therefore denies the same.
REQUEST FOR ADMISSION NO. 14: Prior to his death on January
17, 2017, Richard “Smoke” Lessert provided Vada Lessert financial
support.
Defendant’s Response: BNSF objects to this Request as
ambiguous. Subject to and without waiving this objection, BNSF

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has made reasonable inquiry and the information it knows or can
readily obtain is insufficient to enable it to admit or deny.
(Doc. 93 at pp. 16-17). Plaintiff argues that BNSF’s objection to Number 3,
that the request calls for a legal determination, is not a proper objection. Id. at
p. 17. As to Number 14, Plaintiff argues that the request is not ambiguous and
the language of the request conforms to normal, everyday usage. Id. Plaintiff
asserts that BNSF has “fully explored Mr. Lessert’s surviving spouse’s sources
of income, including through written discovery and through the taking of her
deposition.” Id. at 18.
BNSF first argues that the motion is untimely; its objection to Request
Number 3 was proper because it involved purely a matter of law; and that its
objection that Request Number 14 was proper because the question is
inherently ambiguous.
First, the court has discretion to address the discovery motion and finds
that the motion was filed in a timely fashion. As it pertains to Request for
Admission Number 3, the court finds BNSF’s response to be unreasonable and
misplaced. The request does not involve a pure matter of law. The request
centers around whether Vada Lessert is the surviving widow of the decent which is purely a question of fact; the reference to 45 U.S.C. § 51 provides
context. But even if the court entertains BNSF’s argument that the request
calls for a legal determination, the court still finds BNSF’s objection improper.
FED. R. CIV. P. 36(a)(1) allows such a request that relates to the application of
law to a fact. The subject matter of the request is proper under Rule 36(a)(1).
Having taken Vada Lessert’s deposition, BNSF may freely dispute the legal
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liability for the damages and whether Ms. Lessert may recover those damages
under the statute, but there appears to be no reasonable basis to dispute the
fact that she is the surviving widow of Richard Lessert.
As it pertains to Request for Admission Number 14, the court also finds
BNSF’s objection improper and its response in violation of its obligations in
complying with Rule 36(a)(4). The court finds that there is no ambiguity in
Plaintiff’s request seeking an admission regarding whether the decedent
provided financial support to Vada Lessert. Additionally, the court finds
BNSF’s stock answer that “the information it knows or can readily obtain is
insufficient to enable it to admit or deny” fails to meets its obligation to: (1)
describe with particularity what steps he took to attempt to obtain the
information which would enable him to admit or deny, (2) describe what
information he obtained after taking these reasonable steps, and (3) state why
the information readily available to him did not enlighten him such that he
could either admit or deny the requests. While in its brief in opposition to the
motion, BNSF cited portions of Vada Lessert’s deposition regarding some of the
sources of her income, it is not clear why Defendant did not (or was unable to)
obtain information regarding whether she received financial support from the
decedent.
The court cautions BNSF to take whatever reasonable steps are
available to it to enable it to admit or deny Plaintiff’s requests to admit. Failure
to do so may result in the matters being deemed admitted and BNSF may be
required to pay the costs incurred by Plaintiff in proving the matters which are

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the subject of the requests. 8B Charles A. Wright, Arthur R. Miller, & Richard
L. Marcus, Fed. Practice & Procedure, § 2265, page 401 (3d ed. 2010).
Therefore, the court finds BNSF’s responses to Request Number 3 and
Number 14 of Plaintiff’s Second Set of Requests for Admissions insufficient and
orders BNSF to serve amended responses to these two requests within 20 days
of this Order. Such amended responses shall confirm to FED. R. CIV. P. 36(4).
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 this 27th day of May, 2020.
BY THE COURT:

DANETA WOLLMANN
United States Magistrate Judge

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