Yost v. Jay et al
Filing
40
ORDER Denying 25 Plaintiff's First Motion to Compel and for Sanctions. Signed by Magistrate Judge Robert W. Trumble on 10/2/2015. (cmd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
LINDA E. YOST,
Plaintiff,
v.
CIVIL ACTION NO.: 3:15-CV-00041
(GROH)
CHAD JAY, et al.,
Defendants.
ORDER DENYING PLAINTIFF’S FIRST MOTION TO COMPEL AND FOR
SANCTIONS
I.
INTRODUCTION
On August 27, 2015, Plaintiff Linda E. Yost (“Plaintiff”), through counsel Bradley
J. Reed, Esq., filed her First Motion to Compel and for Sanctions, requesting that this
Court order Defendant State Farm Mutual Automobile Insurance Company (“State
Farm” or “Defendant”) to “answer completely” each of Plaintiff’s Interrogatories. (Pl.’s
Mot. to Compel and for Sanctions (“Pl.’s Mot.”) at 6, ECF No. 25). Subsequently,
Defendant filed its Response in Opposition to Plaintiff’s Motion to Compel and for
Sanctions and Plaintiff filed her Reply to Defendant’s Response. (State Farm’s Resp. in
Opp’n to Pl.’s Mot. to Compel and for Sanctions (“Def.’s Resp.”), ECF No. 31; Pl.’s
Reply, ECF No. 32). On August 31, 2015, the matter was referred to the undersigned
United States Magistrate Judge for disposition. 28 U.S.C. § 636(b)(1)(B) (2009); Fed. R.
Civ. P. 72(b). The undersigned held an evidentiary hearing on Plaintiff’s Motion on
September 29, 2015. For the reasons set forth below, Plaintiff’s First Motion to Compel
and for Sanctions is denied.
II.
BACKGROUND
This case arises out of a motor vehicle accident that occurred on December 6,
2012, in Berkeley County, West Virginia. (Pl.’s Mot. at 1). On August 14, 2014, Plaintiff
filed a Complaint in state court against Chad Jay, who was involved in the motor vehicle
accident. (Def.’s Resp. at 2). Subsequently, Plaintiff settled with Mr. Jay for the full
amount of Mr. Jay’s liability insurance coverage. (Id.). After settling with Mr. Jay, Plaintiff
filed an Amended Complaint, joining State Farm as a defendant and adding, inter alia, a
claim for underinsured motorist coverage benefits against State Farm. (Notice of
Removal at 1-2, ECF No. 1). On March 15, 2015, Plaintiff served the Amended
Complaint and multiple discovery requests, including Plaintiff’s Interrogatories, on
Defendant. (Id. at 1; Def.’s Resp. at 2).
On April 9, 2015, Defendant removed the action to federal court. (Notice of
Removal at 1). On May 13, 2015, the parties conferred regarding a discovery plan as
directed by Federal Rule of Civil Procedure (“FRCP”) 26(f). (Report of Parties’ Initial
Planning Meeting, ECF No. 7). Afterwards, the Court issued a Scheduling Order,
directing that discovery be completed by November 4, 2015. (Scheduling Order, ECF
No. 9). Initial disclosures were served on June 15, 2015. (Certificate of Serv., ECF No.
10; Def.’s Initial Disclosure, ECF No. 11). On June 26, 2015, Defendant served its
discovery requests on Plaintiff. (Pl.’s Mot. at 2).
On August 6, 2015, Defendant informed Plaintiff that it had not received
Plaintiff’s responses to its discovery requests within the thirty-day time period provided
by FRCP 33. (Pl.’s Mot. Ex. 7). Defendant requested that Plaintiff submit her responses
within seven days. (Id.). That same day, Plaintiff asked that Defendant respond to her
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discovery requests within seven days. (Pl.’s Mot. Ex. 8). Defendant replied that it was
“actively responding and [that] responses [would] be provided soon.” (Pl.’s Mot. Ex. 9).
While Plaintiff served her responses on Defendant within the seven days, Defendant did
not serve its responses within that time period because a “death in [the] family of a
client contact ha[d] delayed responses being sent.” (Pl.’s Mot. Ex. 11). Defendant
informed Plaintiff, however, that it was “working diligently on responding and [would]
send [its responses] as soon as possible.” (Id.). On August 19, 2015, approximately six
days after the seven-day time period ended, Defendant served its Answers to Plaintiff’s
Interrogatories on Plaintiff. (Pl.’s Mot. Ex. 13). In its answers, Defendant asserted
objections to twenty of Plaintiff’s Interrogatories but, “[i]ncorporating and without waiving
[the] objection[s],” also provided some kind of response.1 (Id.). While Defendant failed to
include a signed verification page with its responses, it provided such verification the
following day.2 (Pl.’s Mot. Ex. 15).
III.
A.
DISCUSSION
Contentions of the Parties
In her Motion to Compel and for Sanctions, Plaintiff states that her argument
“revolves around . . . Defendant’s objections.” (Pl.’s Mot. at 3-4). Specifically, Plaintiff
asserts that, pursuant to FRCP 33, Defendant has waived the right to raise objections to
Plaintiff’s Interrogatories because it failed to timely serve its responses on Plaintiff. (Id.
at 4).
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All of the information contained in the responses had been previously provided to Plaintiff in
Defendant’s Initial Disclosures. (Def.’s Resp. at 3; Pl.’s Mot Ex. 13; Def.’s Initial Disclosure).
2
Plaintiff declares that the “objections [were] not signed” by Defendant’s counsel. (Pl.’s Mot. at
6). However, the objections that Plaintiff submitted as Exhibit 13 of her Motion to Compel and
for Sanctions clearly shows that the objections were signed by E. Kay Fuller, of Martin &
Seibert, L.C., who is recorded as the lead attorney in this action. (Pl.’s Mot. Ex. 13).
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In its Response in Opposition to Plaintiff’s Motion to Compel and for Sanctions,
Defendant raises three arguments. First, Defendant asserts that Plaintiff’s
Interrogatories, which were served on Defendant in state court, became null and
ineffective upon the action’s removal to federal court and that the thirty-day time period
provided by FRCP 33 to respond to the Interrogatories did not start to run until
Defendant agreed to respond to Plaintiff’s Interrogatories on August 6, 2015. (Def.’s
Resp. at 4-5). Second, Defendant asserts that, despite its objections, it provided
substantive responses in its Answers to Plaintiff’s Interrogatories. (Id. at 5-6). Third,
Defendant asserts that sanctions are not warranted because, even if Defendant had
delayed in responding to Plaintiff’s Interrogatories, good cause existed for Defendant’s
delay because a close family member of “a chief State Farm contact” had passed away
prior to Defendant’s submission of its answers. (Id. at 6-7).
B.
Analysis of Plaintiff’s Motion to Compel and for Sanctions
1. Motion to Compel
Plaintiff contends that Defendant failed to timely serve its Answers to Plaintiff’s
Interrogatories. (Pl.’s Mot. at 4). Defendant counters by arguing that Plaintiff failed to reserve her Interrogatories once the action was removed to federal court and that it timely
filed its responses thirteen days after it agreed to respond to the discovery requests.
(Def.’s Resp. at 3-5). Defendant further argues that, even if its responses were untimely,
it had good cause for the delay. (Def.’s Resp. at 6).
FRCP 33 governs interrogatories. Fed. R. Civ. P. 33. Under FRCP 33, a party
that is served interrogatories “must serve its answers and any objections within 30 days
after being served with the interrogatories.” Fed. R. Civ. P. 33(b)(2). As a general rule,
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objections served after this thirty-day time period are deemed waived. LR Civ P
26.04(a)(1).
Whether a party must respond to interrogatories that were served in a state court
proceeding after the action is removed to federal court is an unresolved issue in this
Circuit. In other jurisdictions that have ruled on this issue, the majority of courts have
held that a party need not respond to such discovery requests. See, e.g., Riley v.
Walgreen Co., 233 F.R.D. 496, 498 (S.D. Tex. 2005) (declaring that once an action is
removed, it is governed by federal procedure and FRCP 26(d) “bars discovery until after
the parties have conferred about a discovery plan as directed by [FRCP] 26(f)”);
Osborne v. Billings Clinic, No. CV 14-126-BLG-SPW, 2014 WL 6769752, at *2 (D. Mont.
Dec. 1, 2014) (stating that the majority of courts have concluded that discovery
“requests served in a state case need not be answered once the case is removed to
federal court, if the deadline to answer those requests did not lapse before removal”).
However, other courts have held that removal has no or only a minimal effect on
discovery requests that were served in state court. See, e.g., Riquelme v. United States,
No. 8:07-cv-2180-T-30MAP, 2009 WL 1405179, at *2 (M.D. Fla. May 19, 2009)
(declaring that discovery requests served in state court do not become null and
ineffective upon removal but instead are due “within thirty days from the date of the
case management conference” that is required by FRCP 26(f)); see also Mann v. Metro.
Life Ins. Co., No. 99-CV-36, 1999 WL 33453411, at *2 (W.D. Va. July 9, 1999)
(declaring that removal does not affect the validity and force of discovery requests
served in state court).
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If a party served with interrogatories fails to answer an interrogatory or answers
an interrogatory evasively or incompletely, then the party seeking discovery may file a
motion to compel full disclosure or discovery. Fed. R. Civ. P. 37. The “purpose of [a
motion to compel] is to prevent surprise and prejudice to an opposing party.” Kartman v.
Markle, No. 5:10CV106, 2015 WL 5120344, at *2 (N.D. W. Va. Aug. 28, 2015).
However, a court may excuse an untimely filed objection if good cause is shown. Fed.
R. Civ. P. 33(b)(4); LR Civ P 26.04(a)(1).
In the present case, the undersigned finds no basis to compel additional
responses from Defendant. For the purpose of this order, even if it assumed that
Plaintiff was not required to re-serve her Interrogatories on Defendant after removal to
federal court, Defendant has shown that good cause exists for its untimely responses
for several reasons.3 First, Defendant appears to have expected Plaintiff to re-serve her
discovery requests following their May 13, 2015, discovery plan conference. Because a
party’s litigation strategy may change once a case is removed to federal court and
because a great amount of confusion surrounds the issue of whether discovery
requests must be re-served after removal, Defendant’s expectation was not unfounded
or unreasonable. Second, a close family member of a chief State Farm contact had
passed away prior to Defendant’s service of its responses. As Defendant may have
required this contact’s knowledge to complete its Answers to Plaintiff’s Interrogatories, a
delay in Defendant’s service of its responses was not unreasonable. Consequently, the
undersigned will excuse any untimeliness on the part of Defendant and allow
Defendant’s objections to stand.
3
The undersigned finds that the issue of whether a party must re-serve its discovery requests
upon an action’s removal to federal court need not be decided at this time.
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2. Motion for Sanctions
Plaintiff argues that Defendant’s untimely service of its Answers to Plaintiff’s
Interrogatories warrants sanctions. (Pl.’s Mot. at 1-4). Defendant counters by arguing
that sanctions are not appropriate because it provided substantive responses to
Plaintiff’s Interrogatories and had good cause for any delay that occurred. (Def.’s Resp.
at 6-7). If a party engages in misconduct during discovery, FRCP 37 authorizes a court
to impose sanctions on that party. Fed. R. Civ. P. 37. Sanctions may include, inter alia,
“attorney’s fees, monetary sanctions, attorney disqualification or the dismissal of an
action.” O’Neal v. Capital One Auto Fin., Inc., No. 3:10-cv-40, 2011 WL 2600928, at *2
(N.D. W. Va. June 29, 2011). To assist courts in choosing which sanctions to impose,
the United States Court of Appeals for the Fourth Circuit has developed a four-part test
for courts to use. Belk v. Charlotte–Mecklenburg Bd. of Educ., 269 F.3d 305, 348 (4th
Cir. 2001). Under this test, a court “must [consider:] (1) whether the non-complying party
acted in bad faith, (2) the amount of prejudice that noncompliance caused the
adversary, (3) the need for deterrence of the particular sort of non-compliance, and (4)
whether less drastic sanctions would [be] effective.” Id.
In the present case, remaining under the assumption that Defendant’s responses
to Plaintiff’s Interrogatories were untimely, the undersigned finds no basis for sanctions
against Defendant for several reasons. First, no evidence exists that Defendant acted in
bad faith or for the purpose of delaying Plaintiff’s discovery. Second, Plaintiff has
suffered no prejudice. Defendant provided responses to each of Plaintiff’s
Interrogatories as well as a signed verification page. Moreover, Defendant had
previously provided the information contained in its responses in its Initial Disclosures,
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so Plaintiff was not delayed in her receipt of the information. Third, Defendant’s actions,
which constitute good faith attempts to comply with the Federal Rules of Civil
Procedure, are not of the sort that must be deterred. Finally, a sufficient amount of time
existed after Defendant’s service of its Answers to Plaintiff’s Interrogatories for Plaintiff
to seek any additional discovery before the November 4, 2015, discovery deadline, if
she found it necessary. Consequently, even lesser sanctions, such as the payment of
expenses or attorney’s fees, are not warranted.
IV.
CONCLUSION
For the reasons herein stated, I find that good cause exists for any untimeliness
on the part of Defendant regarding the service of its Answers to Plaintiff’s
Interrogatories. Further, I find that sanctions are not warranted in this action.
Accordingly, Plaintiff’s First Motion to Compel and for Sanctions (ECF No. 25) is
DENIED.
Any party may, within fourteen (14) days of this Order, file with the Clerk of the
Court written objections identifying the portions of the Order to which objection is made,
and the basis for such objection. A copy of such objections should also be submitted to
the Honorable Gina M. Groh, Chief United States District Judge. Failure to timely file
objections to the Order set forth above will result in waiver of the right to appeal from a
judgment of this Court based upon such order. 28 U.S.C. § 636(b)(1); United States v.
Schronce, 727 F.2d 91, 94 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984); Wright v.
Collins, 766 F.2d 841, 845-48 (4th Cir. 1985); Thomas v. Arn, 474 U.S. 140, 155 (1985).
The filing of objections will not stay this Order.
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The Court directs the Clerk of the Court to provide a copy of this Report and
Recommendation to all counsel of record, as provided in the Administrative Procedures
for Electronic Case Filing in the United States District Court for the Northern District of
West Virginia.
Respectfully submitted this 2nd day of October, 2015.
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