Bear Shield et al v. Kumho Tire U.S.A., Inc.

Filing 69

ORDER granting 61 Motion to Compel. Signed by US Magistrate Judge Veronica L. Duffy on 2/12/2020. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION

THE ESTATE OF ROBERT BEAR
SHIELD; JERRY BEAR SHIELD,SR.;
JERRY BEAR SHIELD, JR.; JAYDEE
SPOTTED ELK; AMERICAN ZURICH
INSURANCE COMPANY; AND HEAVY
CONSTRUCTORS INC.;
Plaintiffs,

5:18-CV-05036-JLV

ORDER GRANTING DEFENDANTS’
MOTION TO COMPEL

vs.

Docket No. 61

KUMHO TIRE U.S.A., INC.; KUMHO
TIRE MERGER SUBSIDIARY, INC.;
KUMHO TIRE CO. INC.; KUMHO TIRE
(VIETNAM) CO., LTD.;
Defendants.

INTRODUCTION
This matter is pending before the court on a complaint filed by plaintiffs
the estate of Robert Bear Shield; Jerry Bear Shield, Senior; Jerry Bear Shield,
Junior; and Jaydee Spotted Elk (hereinafter collectively “Bear Shield
plaintiffs”). See Docket No. 1.1 Defendants have filed a motion to compel the
Bear Shield plaintiffs to respond to their discovery requests. See Docket

A separate complaint was filed by plaintiffs American Zurich Insurance
Company and Heavy Constructors, Inc. The two cases involve claims arising
out of the same motor vehicle accident and were therefore consolidated into
this one combined case. Plaintiffs American Zurich and Heavy Constructors
are not involved in the present motion.
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No. 61. The Bear Shield plaintiffs did not respond to the motion. The district
judge, the Honorable Jeffrey L. Viken, referred defendants’ motion to this
magistrate judge for a decision pursuant to 28 U.S.C. § 636(b)(1)(A) and the
court’s October 16, 2014, standing order. See Docket No. 65.
FACTS
The undisputed facts asserted by defendants in their motion are that
defendants served the Bear Shield plaintiffs with interrogatories and requests
for the production of documents on July 26, 2019. Responses to these
discovery requests were due within 30 days. The Bear Shield plaintiffs
provided no responses, then or ever, despite multiple inquiries by defendants
and plaintiffs’ counsel’s representation on October 30, 2019, that responses
were imminent at that date. Defendants now move to compel the Bear Shield
plaintiffs to respond to their discovery requests.
DISCUSSION
The Federal Rules of Civil Procedure as well as this court’s local rules
require a movant on a discovery motion to first engage in good faith attempts to
resolve the matter with opposing counsel informally before filing a discovery
motion. See FED. R. CIV. P. 37(a)(1) and DSD LR 37.1. The court finds
defendants have satisfied this precondition to filing the instant motion.
When a party is served with discovery requests, they must either provide
responses to each discovery request or make objection to it within 30 days.
See FED. R. CIV. P. 33(b)(2) and 34(b)(2). The parties may stipulate to a longer
period of time or the court may order a longer response time. Id. Neither has
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happened in the case of defendants’ discovery requests to the Bear Shield
plaintiffs that would excuse the Bear Shield plaintiffs’ failure to respond for
over six months. The Bear Shield plaintiffs have not even responded to
defendants’ motion to compel, although they had 21 days within which to do
so. See DSD LR 7.1B. Defendants have shown good cause for the granting of
their motion and the court will, accordingly, grant it.
Counsel for the Bear Shield plaintiffs have demonstrated multiple times
in this lawsuit either an ignorance of the governing law of civil procedure or a
willingness to flout it. Rule 37 requires the court to award sanctions for a
successful motion to compel such as defendants’ motion in the form of the
attorneys’ fees incurred in filing the motion. See FED. R. CIV. P. 37(a)(5)(A). If
defendants wish to obtain such an award, they are directed to file a motion
detailing those expenses and providing appropriate documentary support. The
Bear Shield plaintiffs shall have 21 days from the filing of any such motion to
respond.
CONCLUSION
Defendants’ motion to compel [Docket No. 61] is hereby granted in full.
The Bear Shield plaintiffs shall immediately serve defendants (but not file with
the court) their responses to defendants’ first sets of interrogatories and
requests for production of documents served on July 26, 2019.

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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 12th day of February, 2020.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge

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