Beckman v. T. K. Stanley, Inc.
Filing
19
MEMORANDUM OPINION AND ORDER; GRANTS as to 16 Motion to Compel. Objections to this Order within 14 days with US District Judge Irene M. Keeley. If objections are filed, the District Court will consider the objections and modify or set aside any portion of the Order found to be clearly erroneous or contrary to law. Signed by Magistrate Judge John S. Kaull on 3/29/2012. (Copy counsel of record via CM/ECF)(jmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KENNETH BECKMAN,
Plaintiff,
v.
Civil Action No.: 1:11-cv-133
T.K. STANLEY, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
I.
Procedural History
Plaintiff filed the within action on July 19, 2011 in the Circuit Court of Marion County, West
Virginia. Generally, Plaintiff alleges Defendant, his former employer, wrongfully discharged him
as a full time truck driver and thereafter tortiously interfered with Plaintiff’s attempt to secure
employment with another company. The case was removed to this Court on August 18, 2011 (DE1).
A scheduling order was entered by the District Judge closing discovery on June 1, 2012 and setting
the case for jury trial on November 5, 2012 (DE8). Defendant filed discovery requests (First Set of
Interrogatories and First Requests for Production of Documents) on December 5, 2011 (DE 12 and
13). Plaintiff served Answers and Responses on Defendant on February 13, 2012. Defendant took
Plaintiff’s deposition on March 7, 2012 (DE 14). Defendant filed its Motion To Compel Answers
To Interrogatories And Responses To Requests For Production Of Documents And For Expenses
(DE 16) on March 9, 2012. The District Judge Referred the matter to the undersigned on March 12,
2012 pursuant to 28 U.S.C. §636(b)(1)(A) (DE 18).
II.
Contentions
Defendant
Defendant contends:
1)
It granted numerous extensions to Plaintiff’s counsel to answer and respond to its December
5, 2011 interrogatories and requests for production;
2)
Plaintiff served Answers and Responses on Defendant on February 13, 2012;
3)
Plaintiff’s Answers and Responses to Interrogatories 5, 6, 8, 9, 10, 12, 13, 14, and 22 and
Requests 2, and 25 were inadequate and incomplete;
4)
Counsel for Defendant corresponded (letter dated February 17, 2012 and follow up email
dated February 24, 2012) with Plaintiff’s counsel and thereafter met in person with Plaintiff’s
counsel March 7, 2011 in an effort to resolve the discovery dispute without court
intervention; and
5)
Plaintiff’s counsel and Plaintiff have failed to supplement the responses.
Plaintiff
Plaintiff did not respond to the Motion To Compel and the time for such response has
expired.
III.
Discussion
Interrogatories at issue:
Interrogatory 5:
Answer:
Complaint:
Please state the name and address of each and every person who has
knowledge of the facts and circumstances contained in your complaint and,
for, each, please state:
(a)
The substance of the facts known by each said witness;
(b)
The relationship, if any, to you;
(c)
The relationship, if any, to T.K. Stanley; and
(d)
Whether you or a representative has taken a written statement for
each said, person.
James Wills, brother-in-law and former T.K. Stanley employee
Randy Waddell, current T.K. Stanley employee
David Graham, current T.K. Stanley employee
No statements have been taken from any person.
Response fails to include individuals that were revealed in Plaintiff’s
deposition testimony; fails to provide the substance of the facts known by
each said witness; and T.K. Stanley is entitled to the information.
Interrogatory 6:
Answer:
Complaint:
Interrogatory 8:
Answer:
Complaint:
Interrogatory 9:
Please identify each person whom you expect to call as an expert witness at
trial. For each such person, state the following:
(a)
His or her name, address, telephone number, and occupation;
(b)
The subject on which the expert is expected to testify;
(c)
The substance of facts and opinions to which the expert is expected
to testify including summary of the grounds for each opinion;
(d)
A summary of his or her expected testimony; and
(e)
Whether you have a written report from the expert.
PA DOT or WV DOT employees handling commercial vehicle citations; can
provide documentation and information regarding any citations for T.K.
Stanley; no written report.
The answer fails to meet the scope of the information requested. Expert
witness disclosures were due on February 3, 2012. Plaintiff did not disclose
any experts.
With respect to the allegation in your complaint that “[d]uring his employ, the
Plaintiff was instructed by the Defendant on numerous occasions to haul
oversized loads illegally when the Defendant would have difficulty obtaining
the proper permits,” please state the following:
(a)
Cite to and describe all evidence which supports said allegation,
including but not limited to all dates on which such instructions to
Plaintiff was made;
(b)
Sate the name, home and business address and home and business
telephone number of each and every person who has knowledge of
any of the facts set forth in your response to subsection a. above,
including but not limited to the identity of all individuals who
instructed Plaintiff to take such action; and
(c)
State whether there exists any document or other piece of nontestimonial evidence to support such facts and, if so, it is hereby
requested that you produce for inspection and copying, or attach to
your Answers to these Interrogatories, a copy of each document or
other piece of non-testimonial evidence.
Pennsylvania Department of Transportation or West Virginia Department of
Transportation officers have numerous citations on file. Every driver of T.K.
Stanley, past or present, can verify the way Stanley operates. Shane, a T.K.
Stanley supervisor, and Clay Courlaw know what happened regarding permits
and oversize loads.
Plaintiff failed to provide dates on which alleged instructions were made to
Plaintiff to haul oversized loads illegal and failed to identify all individuals
who instructed Plaintiff to take such action.
With respect to the allegation in your complaint that “[o]n one occasion the
Plaintiff was forced to park for an extended period of time in Hazelton, West
Virginia because the Defendant could not get proper oversized load permits
in West Virginia and therefore demanded that the Plaintiff illegally haul his
load to Pennsylvania-where permits had been obtained-on the roads of West
Answer:
Complaint:
Interrogatory 10:
Answer:
Complaint:
Virginia, but the Plaintiff refused. The Defendant then paid another
employee $100.00 ‘under the table’ to haul the illegal load to Pennsylvania,”
please state the following:
(a)
Cite to and describe all evidence which supports said allegation,
including but not limited to all date [sic] on which this alleged
incident occurred;
(b)
State the name, home and business address and home and business
telephone number of each and every person who has knowledge of
any of the facts set forth in your response to subsection a. above,
including but not limited to the identity of [sic] individual who
instructed Plaintiff to take such action, the identity of the individual
who paid another individual “under the table,” and the identity of the
individual who was paid “under the table;” and
(c)
State whether there exists any document or other piece of nontestimonial evidence to support such facts and, if so, it is hereby
requested that you produce for inspection and copying, or attach to
your Answers to these Interrogations, a copy of each document or
other piece of non-testimonial evidence.
The Plaintiff has no evidence regarding this transaction. The person giving
the instruction was Frank, the manager (last name unknown). The person
who received the payment was from Mississippi and the Plaintiff does not
know his name.
Plaintiff failed to provide the date when this alleged incident occurred.
With respect to the allegation in your complaint that “[t]he Plaintiff
immediately and consistently objected to the illegal practice of hauling
oversized loads without proper permits,” please state the following:
(a)
Cite to and describe all evidence which supports said allegation,
including but not limited to all dates on which such objections were
made;
(b)
State the name, home and business address and home and business
telephone number of each and every person who has knowledge of
any of the facts set forth in your response to subsection a. above,
including but not limited to the identity of the individuals to whom
the objections were made; and
(c)
State whether there exists any document or other piece of nontestimonial evidence to support such acts and, if so, it is hereby
requested that you produce for inspection and copying, or attach to
your Answers to these Interrogatories, a copy of each document or
other piece of non-testimonial evidence.
The Plaintiff is unable to recall specific dates when he refused to haul
oversize loads (with the exception of September 17, 2010). The
Pennsylvania Department of Transportation and the West Virginia
Department of Transportation have multiple citations on file.
Plaintiff fails to identify the individuals to whom he allegedly made
objections about the alleged practices at issue.
Interrogatory 12:
Answer:
Complaint:
Interrogatory 13:
Answer:
With respect to the allegation in your complaint that “[w]hen the Plaintiff
again refused to engage in the illegal activities required by the Defendant, the
Plaintiff was given a choice: haul the illegal load or be fired. His supervisor
told him ‘if you don’t want to take this load, then take your truck back to the
shop and clean it out-you’re done.’ The Plaintiff persisted in his refusal to
haul illegally, and was fired,” please state the following:
(a)
Cite to and describe all evidence which supports said allegation;
(b)
State the name, home and business address and home and business
telephone number of each and every person who has knowledge of
any of the facts set forth in your response to subsection a. above,
including but not limited to the identity of the supervisor who told
Plaintiff “if you don’t want to take this load, then take your truck
back to the shop and clean it out - you’re done”’ and
(c)
State whether there exists any document or other piece of nontestimonial evidence to support such facts and, if so, it is hereby
requested that you produce for inspection and copying, or attach to
your Answers to these Interrogatories, a copy of each document other
piece of non-testimonial evidence.
Plaintiff is not in possession of the improper permit. The permit was taken
when Plaintiff was told to take the truck back and clean it out. With the
exception of Shane and Clay, David Graham, telephone number 304-9521611, was the only witness.
Plaintiff’s answer fails to identify the name of the supervisor who made the
alleged statement.
With respect to the allegation in your complaint that “[t]he Plaintiff had
worked approximately fourteen (14) hours on September 17 before being
fired. However, Stanley later falsely informed several third parties including the Unemployment Office - that the Plaintiff had been terminated
on September 16,,” please state the following:
(a)
Cite to and describe all evidence which supports said allegation,
including the nature of the work performed by Plaintiff on September
17, including all routes driven by Plaintiff on this date;
(b)
State the name, home and business address and home and business
telephone number of each and every person who has knowledge of
any of the facts set forth in your response to subsection a. above,
including but not limited to the identity of all third parties who were
false [sic] informed that the Plaintiff had been terminated on
September 16 and the identity of individual who provided this
information to the third parties; and
(c)
State whether there exists any document or other piece of nontestimonial evidence to support such facts and, if so, it is hereby
requested that you produce for inspection and copying, or attach to
your answers to these Interrogatories, a copy of each document or
other piece of non-testimonial evidence.
The Unemployment Office file has this information and said file has been
Complaint:
Interrogatory 14:
Answer:
Complaint:
Interrogatory 22:
Answer:
Complaint:
Request 1:
Response:
requested.
The answer fails to identify the individual who allegedly provided
information to third parties that Plaintiff was terminated on September 16,
2010.
With respect to the allegation in your complaint that “[d]uring the Plaintiffs’
ensuring [sic] unemployment compensation claim - in which the Plaintiff was
found to be without fault in his termination - the Plaintiff attempted to obtain
employment at Allied Waste. However, Defendant Stanley deliberately made
disparaging and defamatory statements about the Plaintiff to Allied
management, including that he ‘didn’t know when to keep his mouth shut,’
for the purpose of destroying the Plaintiff’s employment prospects with
Allied, and Plaintiff was in fact denied employment with Allied,” please state
the following:
(a)
Cite to and describe all evidence which supports said allegation;
(b)
State the name, home and business address and home and business
telephone number of each and every person who has knowledge of
any of the facts set forth in your response to subsection a. above,
including but not limited to the identity of the individual who made
the comment to Allied management that Plaintiff “didn’t know when
to keep his mouth shut,” the identity of the individuals of Allied
management to whom this comment was made, and the identity of the
individual who conveyed this information to Plaintiff; and
(c)
State whether there exists any document or other piece of nontestimonial evidence to support such facts and, if so, it is hereby
requested that you produce for inspection and copying, or attach to
your answers to these Interrogatories, a copy of each document or
other piece of non-testimonial evidence.
No written proof. All was done by phone.
Plaintiff’s response fails to identify the individuals of Allied management to
whom this comment was allegedly made and to identify the individual who
allegedly conveyed this information to Plaintiff.
Pleasge [sic] identify all social media networks on which you currently
maintain/manage accounts. If you do not currently maintain/manage
accounts on any social media networks, please state the date on which you
ceased maintaining/managing or on which you deleted said accounts and
whether you still have access to the content on such accounts.
N/A.
Plaintiff testified in his deposition that he had an account on facebook.com.
Please produce copies of all documents that you intend to introduce at trial
of this action, any documents which you may use for demonstrative purposes
at the trial of this action, and any documents which you intend to use for
impeachment purposes at the trial of this action.
None.
Complaint:
The response is inconsistent with Plaintiff’s deposition testimony and he
should either be held to his response or required to supplement it.
Request 25:
Please produce any and all documents within your possession or control that
describe, detail, explain, and/or set forth any and all benefits (including, but
not limited to, medical insurance, paid/unpaid vacation/sick/personal time
available to you, retirement benefits, etc.) you have been offered and/or
currently receive from your current employer.
Plaintiff will request documents from current employer.
Plaintiff has had ample time (approximately 3 months to provide the
information) and has not.
Response:
Complaint:
L.R.Civ.P. 26.01 (c) and F.R.Civ.P. 37(a)(1)
LR.Civ.P. 26.01 (c) provides in pertinent part: “The judicial officer shall not consider any
discovery motion under this Rule unless it is accompanied by a certification that the moving party
has made a reasonable and good-faith effort to reach agreement with counsel or unrepresented parties
opposing the further discovery sought by the motion.”
F.R.Civ.P. 37(a)(1) 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.”
Defendant’s counsel’s letter (Exhibit B to the motion), the follow-up email, coupled with the
telephone and face to face conferences with Plaintiff’s counsel constitute the reasonable and goodfaith effort to reach agreement as contemplated by the rule and was properly certified in the motion.
Relevance
F.R.Civ.P. 26(b)(1) provides: “unless otherwise limited by court order, the scope of discovery
is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to
any party’s claim or defense – including the existence, description, nature, custody, condition, and
location of any documents or other tangible things and the identity and location of persons who know
of any discoverable matter....” The “discovery rules are to be accorded a broad and liberal treatment.”
Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed.451 (1947). However, the discovery sought
must be relevant F.R.C.P. 26(b)(1); see also Herbert v. Lando, 441 U.S. 153, 99 S.Ct 1635, 60
L.Ed.2d 115 (1979). In striking the appropriate balance, “[d]istrict courts enjoy nearly unfettered
discretion to control the timing and scope of discovery and impose sanctions for failures to comply
with its discovery orders.” Hinkle v. City of Clarksburg, 81 F.3d 416 (4th Cir. 1996). “Discovery
requests may be deemed relevant if there is any possibility that the information may be relevant to
the general subject matter of the action.” Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121
(M.D.N.C. 1989). Federal Rule of Evidence 401 defines “relevant evidence” as “evidence having
any tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.”
There are no court orders limiting the scope of discovery in this action. The Scheduling
Order establishes a time frame for the completion of discovery. Plaintiff did not assert any claim of
privilege or objection to Defendant’s discovery.
Analysis
Interrogatories 8, 9, 10, 12, 13, 14, and 22 each seek discovery concerning a specific
allegation in Plaintiff’s complaint and are therefor relevant to a claim or defense.
Interrogatory 5 seeks the identity of those who would have information relative to the claims
made in Plaintiff’s complaint and is therefore relevant.
Interrogatory 6 seeks the identity of expert witnesses and is relevant at this stage of the
proceedings because Plaintiff failed to disclose experts by February 3, 2012 as required by te Court’s
scheduling order (DE 8).
Requests 1 and 25 are relevant because they seek discovery of documents that will be
introduced as evidence or used for demonstration purposes at trial with respect to Plaintiff’s claims
and seek discovery of documents supporting potential elements of damages that arise from claims
such as made by Plaintiff.
The Court next proceeded to a review of Plaintiff’s responses.
Plaintiff’s response to Interrogatory 5 is incomplete for the following reasons: 1) Based solely
on the representation of Defendant’s counsel1 in the Memorandum of Law in Support of the Motion
To Compel (DE 17, p. 4), Plaintiff’s deposition testimony allegedly named others who had
knowledge of the facts and circumstances of the claims made other than the three he provided in his
answer to Interrogatory 5. 2) Plaintiff’s response fails to provide “the substance of the facts known
by each said witness” for the three people he did name, to wit: James Wills, Randy Waddell, and
David Graham.
Plaintiff’s response to Interrogatory 6 is incomplete. The response does not provide a single
name, address, telephone number for any PA DOT or WV DOT employee who handles commercial
vehicle citations who is expected to be called as an expert witness. The response does not provide
the subject matter, the substance of facts and opinions, summary of the grounds for each opinion,
and summary of his or her expected testimony. The failure of Plaintiff to make the disclosures
pursuant to the Court’s scheduling order2 and Interrogatory 6 frustrates discovery required under
F.R.Civ.P. 26(a)(2)(A) and (B). Such information is essential to determining whether or not to call
counter experts or to mount a Daubert challenge to the experts disclosed. Plaintiff’s failure to
1
The Court was not provided with a transcript of Plaintiff’s deposition. The Court was
not provided with the names of individuals testified to by Plaintiff that has knowledge of the
facts and circumstances contained within the complaint.
2
The Courts scheduling order provides a time frame for the orderly disclosures of
F.R.Civ.P. 26(a)(2) information.
provide timely disclosure of experts frustrated and prevented Defendant from having the information
necessary for it to meet its obligation to timely disclose its rebuttal experts. Failure to disclose
frustrates the ability of Defendant to complete discovery by the cut off deadline of June 1, 2012.
Plaintiff has had more than adequate time and opportunity to know that his response to Interrogatory
6 was incomplete or incorrect and timely supplement or correct the same pursuant to F.R.Civ.P.
26(e)3.
Plaintiff’s response to Interrogatory 8 is incomplete for the following reasons: 1) Plaintiff’s
response fails to set forth the date or dates Defendant allegedly instructed him to haul oversized loads
illegally when the Defendant would have difficulty obtaining the proper permits. 2) Plaintiff’s
response fails to provide the last name, the home and business address and home and business
telephone number of “Shane”, a T.K Stanley supervisor who is alleged to know what happened
regarding permits and oversize loads. 3) Plaintiff’s response fails to provide the home and business
address and home and business telephone number of Clay Courlaw who is alleged to know what
happened regarding permits and oversize loads. 4) Plaintiff’s response fails to provide the name, the
home and business address and home and business telephone number of every driver of T.K. Stanley,
past or present, “who can verify the way Stanley operates.” 5) Plaintiff’s response fails to “identityall
of the individuals who instructed Plaintiff to take such action (8(b)).
Plaintiff’s response to Interrogatory 9 as set forth in toto within this Order may or may not
be incomplete for the following reasons: 1) If Plaintiff “has no evidence regarding [the] transaction”
as stated, that may be the only answer he can give and he may be prohibited from offering any
evidence at trial beyond that which he provided in his response. To date Plaintiff has not
3
Counsel for Defendant sent counsel for Plaintiff a letter dated February 17, 2012
detailing the deficiencies in Plaintiff’s responses to discovery. DE 17, Exhibit B.
supplemented his response. F.R.Civ.P. 37(c). 2) If Plaintiff does not know the last name of “Frank”,
the person he alleges is the manager who instructed him to move an un-permitted overweight load
in WV to PA as stated in his response, that may be the only answer he can give and he may be
prohibited from offering any evidence at a future hearing or trial beyond that which he provided in
his response. To date Plaintiff has not supplemented his response. F.R.Civ.P. 37(c). 3) Plaintiff did
not answer with respect to the “identity of individual who paid the individual under the table to take
the load from WV to PA and did not state that he did not know such person’s identity. 4) If Plaintiff
does not know “the identity of the individual who was paid ‘under the table ‘” as stated in his
response, that may be the only answer he can give and he may be prohibited from offering any
evidence at a future hearing or trial beyond that which he provided in his response. To date Plaintiff
has not supplemented his response. F.R.Civ.P. 37(c). 5) Plaintiff’s response fails to “[s]tate whether
there exists any document or other piece of non-testimonial evidence to support such acts and, if so,
... attach to [his] Answers to these Interrogatories, a copy of each document or other piece of nontestimonial evidence.” Plaintiff’s response that “he has no evidence regarding this transaction” is
perhaps the only response Plaintiff can make to the request for non-testimonial proof. If that is so
and Plaintiff does not supplement, then he may be prohibited from offering any such non-testimonial
evidence at a future hearing or trial, F.R.Civ.P. 37(c).
Plaintiff’s response to Interrogatory 10 is incomplete in that it fails to identify “the
individuals to whom the objections were made.”
Plaintiff’s response to Interrogatory 12 is incomplete in that it fails “to identify the name of
the supervisor who made the alleged statement at issue to Plaintiff.” Plaintiff’s response names a
Shane [LNU], a Clay [LNU], and David Graham. Plaintiff fails to identify any of these individuals
as the supervisor.
Plaintiff’s response to Interrogatory 13, to wit: The Unemployment Office file has this
information and said file has been requested” is incomplete for the following reasons: 1) it fails to
identify the person who allegedly provided information to third parties that Plaintiff was terminated
on September 16, 2010. 2) Plaintiff served Answers and Responses on Defendant on February 13,
2012. At the time of his response he allegedly had already requested a copy of the unemployment
file. To this date there is no evidence that Plaintiff has supplemented his February 13, 2012 response
to interrogatory 13 with a copy of the unemployment file or any portion thereof.
Plaintiff’s response to Interrogatory 14 is incomplete because it fails to identify “the
individuals of Allied management to whom this comment was allegedly made and the identity of the
individual who allegedly conveyed this information to Plaintiff.”
Plaintiff’s response to Interrogatory 22 is incomplete in that it does not provide the required
information for a face book account Plaintiff testified to in his deposition.
Plaintiff’s response to Request 1 may or may not be incomplete. Plaintiff states he has no
documents that he intends to introduce at trial, that he intends to use at trial for demonstrative
purposes, or that he intends to use for impeachment purposes. If that is so and Plaintiff does not
supplement, then he may be prohibited from offering any such evidence at a future hearing or trial,
F.R.Civ.P. 37(c).
Plaintiff’s response to Request 25 is incomplete in that the response was filed February 13,
2012, Plaintiff committed to requesting documents for his current employer, and no supplement has
been made.
Defendant’s motion is couched in the terms of F.R.Civ.P. 37(a)(3)(B)(iii) and (iv). Pursuant
to F.R.Civ.P. 37(a)(4) “[f]or purposes of this subdivision (a), an evasive or incomplete disclosure,
answer, or response must be treated as a failure to disclose, answer, or respond.”
“If a party fails to provide information or identify a witness as required by Rule 26(a) or (e),
the party is not allowed to use that information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or
instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may
order payment of the reasonable expenses, including attorney’s fees, caused by the failure; (B) may
inform the jury of the party’s failure; and (C) may impose other appropriate sanctions, including any
of the orders listed in Rule 37(b)(2)(A)(i)-(vi).”
Substantial Justified
F.R.Civ.P. 37(a)(5)(A) Payment of Expenses; Protective Orders provides:
If the Motion is Granted (or Disclosure or Discovery Is Provided After Filing). If the
motion is granted – or if the disclosure or requested discovery is provided after the
motion was 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. But the Court must not order this
payment if:
(i)
the movant filed the motion before attempting in good faith to obtain the
disclosure or discovery without court action;
(ii)
the opposing party’s nondisclosure, response, or objection was substantially
justified; or
(iii)
other circumstances make an award of expenses unjust.
The Supreme Court, interpreted the meaning of “substantially justified” in connection with
the Equal Access to Justice Act. It found the phrase to mean: “ ‘justified in substance or in the
main’-that is, justified to a degree that could satisfy a reasonable person.” 487 U.S. 552, 566, 108
S.Ct. 2541, 101 L.Ed.2d 490 (1988). An individual's conduct is found to be “substantially justified”
if it is a response to a “genuine dispute, or if reasonable people could differ as to the appropriateness
of the contested action.” Id. at 565, 108 S.Ct. 2541; see also Wright, Miller & Marcus, Federal
Practice and Procedure: Civil 2d § 2288 (1994) (“Making a motion, or opposing a motion, is
‘substantially justified’ if the motion raised an issue about which reasonable people could genuinely
differ on whether a party was bound to comply with a discovery rule.”).
In the instant matter, Plaintiff nor his counsel attempted to justify their actions in failing to
provide discovery in response to the questions presented and requests made. Plaintiff nor his counsel
filed any response to Defendant’s motion to compel. Moreover, based on what is now before the
Court, there is no apparent substantial justification for Plaintiff’s failure fully, completely, and timely
to respond to the discovery as propounded.
Pursuant to F.R.Civ.P. 37(d)(1)(A)(ii): “The Court where the action is pending may, on
motion, order sanctions if: (ii) a party, after being properly served with interrogatories under Rule
33 or a request for inspection under Rule 34, fails to serve its answers, objections or written
response.” The type of sanctions are set forth in F.R.Civ.P. 37 (d)(3) Sanctions may include any of
the orders listed in Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to these sanctions, the court
must require the party failing to act, the attorney advising that party, or both to pay the reasonable
expenses, including reasonable attorney’s fees, caused by the failure, unless the failure was
substantially justified or other circumstances made an award of expenses unjust.”
IV.
Order
For the reasons stated herein Plaintiff shall have until April 15, 2012 within which to fully
and completely respond to Interrogatories 5, 8, 9, 10, 12, 13, 14, and 22. For the reasons stated
herein Plaintiff shall have until April 15, 2012 within which to fully and completely respond to
Requests 1, and 25.
With respect to Interrogatory 6, to grant Defendant’s motion to compel as made would have
the practical effect of giving the Plaintiff an additional ½ month to now disclose expert witnesses
after he failed to do so in accord with the Court’s unmodified scheduling order and after he failed
to do so with respect to the rules governing time for response to discovery. To reward the Plaintiff
with more time frustrates both the Court’s scheduling order and the rules.
Accordingly, Plaintiff shall have 10 days to show cause in writing why his failure to timely
identify expert witnesses - Interrogatory 6 - under the Court’s scheduling order and the Rules of Civil
Procedure is “substantially justified or is harmless” (F.R.Civ.P. 37(c)(1)) and why this Court should
not impose a sanction of prohibiting Plaintiff from “introducing designated matters [expert
witnesses] in evidence” under F.R.Civ.P. 37 (b)(2)(A)(ii) in addition to any other sanction under
F.R.Civ.P. 37(c)(1).
Within fourteen (14) calendar days of entry of this Order Counsel for Defendant shall file
with the Court and serve on Plaintiff’s counsel any accounting of the fees and costs necessitated in
filing the motion to compel. Counsel for Plaintiff shall file any objections to Defendant’s claims of
costs and fees and the amounts claimed, within 7 calendar days of the filing of any such accounting.
Only if a claim for fees and objection thereto is filed will the Court schedule a hearing to provide
Plaintiff an opportunity to be heard.
For docketing purposes Defendant’s Motion To Compel [DE 16] is GRANTED.
In accordance with Rule 72(a) of the Federal Rules of Civil Procedure, the rulings set forth
above may be contested by filing, within 14 days, objections to this Order with United States District
Judge Irene M. Keeley. If objections are filed, the District Court will consider the objections and
modify or set aside any portion of the Order found to be clearly erroneous or contrary to law. (see
also 28 U.S.C. §636(b)(1)(A)).
The clerk is directed to provide electronic notice of the entry of this Memorandum Opinion
and Order to all counsel of record.
The clerk is further directed to remove DE 16 from the docket of motions actively pending
before the Court.
It is so ORDERED.
Dated: March 29, 2012
John S. Kaull
JOHN S. KAULL
UNITED STATES MAGISTRATE JUDGE
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