Downs v. Shinseki

Filing 62

ORDER: Plaintiff's Motion to Compel and for discovery hearing 54 is DENIED. Motion for entry of a Privacy Protective Order 55 is GRANTED. By separate order, the Court has entered the Defendants proposed protective order. Motion for an extens ion of the scheduling order 59 is GRANTED IN PART AND DENIED IN PART. Dispositive Motions deadline reset for 11/9/2012. Signed by Magistrate Judge Juliet E. Griffin on 10/25/12. (xc:Pro se party by electronic notification.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) Modified Text on 10/25/2012 (dt).

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

STEPHEN A. DOWNS, SR.
v.
ERIC K. SHINSEKI, Secretary,
Department of Veterans Affairs

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NO. 3:10-0661

ORDER
Presently pending before the Court is the plaintiff’s motion (Docket Entry No. 54) to compel
discovery from the Defendant.1 The Defendant has responded in opposition to the motion, see
Docket Entry No. 56, and the plaintiff has filed a reply. See Docket Entry No. 58.
By his motion to compel, the plaintiff asserts that he served timely interrogatories, requests
for admissions, and requests for production of documents upon the Defendant and upon employees
of the Defendant but the Defendant has not provided responses to the discovery requests that were
directed to the employees. In response, the Defendant states that the plaintiff served a first set of
requests for admission, a first set of interrogatories, and a first set of requests for production of
documents upon the Defendant. The Defendant asserts that responses to the interrogatories and
requests for admission were mailed to the plaintiff on August 27, 2012, and that responses to the
requests for documents will be mailed to the plaintiff upon entry of a protective order.
The Defendant also states that the plaintiff served upon the Defendant 21 sets of requests for
admission and sets of interrogatories that are directed to various employees of the Department of
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The motion itself is captioned “motion to overrule defendant objection to plaintiff first set
of interrogatories, request for admission, and request for production of documents and plaintiffs
request for a discovery hearing,” which the Court deems to be a motion to compel pursuant to
Rule 37(a) of the Federal Rules of Civil Procedure.

Veterans Affairs who are not parties to this action. The Defendant objects to providing responses
to these discovery requests because they are improperly directed at non-parties. The plaintiff replies
that the individuals to whom he directed his discovery requests are employees of the Department of
Veterans Affairs and were “active players” in the claims he has brought against the Defendant. He
argues that they should be viewed as essentially one and the same as the named defendant in the
action and should be compelled to provide discovery responses. See Docket Entry No. 58.
The plaintiff’s motion to compel and for a discovery hearing2 (Docket Entry No. 54) is
DENIED. Individual employees of the Department of Veterans Affairs do not become parties to an
action merely because the Department of Veterans Affairs, through its Secretary, is named as the
defendant. In accordance with Rules 33 and 36 of the Federal Rules of Civil Procedure, written
interrogatories and requests for admission may be served only upon parties to an action. See
Rule 33(a)(1) (“[A] party may serve on any other party no more than 25 written interrogatories,
including all discrete subparts.”); Rule 36(a)(1) (“A party may serve on any other party a written
request to admit[.]”). Accordingly, counsel for the Defendant properly objected to responding to the
21 discovery requests that were directed at non-party individuals even though those individuals are
employees of the Department of Veterans Affairs.3
The Defendant has also filed a motion (Docket Entry No. 55) for entry of a Privacy Protective
Order pertaining to documents responsive to the plaintiff’s request for production of documents upon
2

Although the caption of the motion includes a request for a hearing, the plaintiff did not
specifically address that request in the body of the motion and there does not appear to be any reason
to schedule a hearing.
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In his reply, the plaintiff takes issue with the sufficiency of the Defendant’s responses to the
plaintiff’s discovery requests. See Docket Entry No. 58, at 3. However, his motion to compel is
clearly limited to only the discovery requests directed at the non-party employees and not to the
responses from the Defendant, and the Court has viewed it as such.
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the Defendant. The plaintiff has responded in opposition. See Docket Entry No. 59. The motion
is GRANTED. By separate order, the Court has entered the Defendant’s proposed protective order
(Docket Entry No. 55-1). Within seven (7) days of the entry of the Protective Order, the Defendant
shall serve upon the plaintiff documents responsive to the plaintiff’s request for production of
documents.
The proposed protective order merely requires that, if the documents received by the plaintiff
in response to his request for the production of documents contain personal information regarding
individuals other than the plaintiff, he shall keep such information confidential and disclose it only
pursuant to the terms of the protective order. Contrary to the plaintiff’s belief, the protective order
does not relieve the Defendant from its obligation to provide responses to the plaintiff’s request for
production of documents, limit those responses, or allow counsel for the Defendant to provide only
selected documents. See Docket Entry No. 57, at 2.
The Defendant has also filed a motion (filed September 19, 2012; Docket Entry No. 59) for
an extension of the scheduling order deadlines, to which the plaintiff has responded in opposition.
See Docket Entry No. 60.
The motion is DENIED to the extent that the Defendant seeks an extension of discovery
deadlines. Initially, the motion itself is untimely as to the request for extensions of any deadlines
related to discovery. The amended deadline for the completion of discovery and the filing of any
discovery motions, as set out in the Order entered June 26, 2012 (Docket Entry No. 53), was
August 31, 2012. Any motion seeking to extend discovery deadlines should have been filed prior
to August 31, 2012.

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Additionally, the Defendant’s arguments for extensions of the deadline for the completion
of written discovery, the deadline for taking the plaintiff’s deposition, and the deadline for the filing
of discovery motions are unpersuasive. The Defendant asserts that, on May 11, 2012, he served
interrogatories, documents requests, and requests for admission upon the plaintiff, and that, although
the plaintiff responded to the requests for admission on June 13, 2012, the plaintiff has not responded
to the interrogatories or document requests as of September 19, 2012. The Defendant asserts that
a letter was mailed to the plaintiff on August 23, 2012, in a good faith effort to obtain the plaintiff’s
outstanding discovery responses.
The plaintiff’s discovery responses were due 30 days after they were served upon him on
May 11, 2012. At the point that the plaintiff’s responses became untimely, the Defendant had over
two months during which time measures could have been taken to obtain the responses from the
plaintiff, but the Defendant has offered no explanation for why the first attempt to informally obtain
the responses was not made until August 23, 2012, only eight days before the discovery deadline,
or why a timely motion to compel was not filed. The Defendant has also not offered any reply to the
plaintiff’s assertion that, prior to the expiration of the 30 day response period, he contacted a
paralegal in the office of the Defendant’s counsel in order to obtain new copies of the discovery
requests, which had become damaged while in the plaintiff’s possession, but that no new copies were
ever sent to him. See Docket Entry No. 60, at 2-3. Furthermore, the Defendant has offered no
explanation for why he has not yet taken the plaintiff’s deposition, or even any indication that the
completion of plaintiff’s deposition was even contemplated by the August 31, 2012, deadline for the
completion of discovery. Although the initial Scheduling Order in this action was not entered until
April 20, 2012 (Docket Entry No. 44), process was ordered to issue in this in forma pauperis action

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by Order entered December 6, 2010 (Docket Entry No. 12), and a stay of discovery was not entered
while the Defendant’s two motions to dismiss (Docket Entry Nos. 18 and 26) were pending. There
has been more than ample time for the Defendant to have noticed and taken the plaintiff’s deposition.
To the extent that the Defendant seeks an extension of the deadline to file dispositive
motions, the motion is GRANTED in part. The deadline for the filing of any dispositive motions is
extended to November 9, 2012. No persuasive reason has been offered to extend this deadline any
further.
As a final matter, on September 28, 2012, the plaintiff filed a notice (Docket Entry No. 61)
in which he appears to seek to withdraw his demand for a jury trial in this action. Pursuant to
Rule 38(d) of the Federal Rules of Civil Procedure, a party cannot unilaterally withdraw his demand
for a jury trial and a jury demand may be withdrawn only if the parties consent. Because the request
made by the plaintiff was not made a request consented to by both parties, this case shall continue
to proceed as a jury trial action.
Any party desiring to appeal this Order may do so by filing a motion for review no later than
fourteen (14) days from the date this Order is served upon the party. The motion for review must be
accompanied by a brief or other pertinent documents to apprise the District Judge of the basis for
appeal. See Rule 72.02(b) of the Local Rules of Court.
So ORDERED.

JULIET GRIFFIN
United States Magistrate Judge

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