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Deere v. American Water Works Company, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

March 16, 2015

GREGORY J. DEERE, GINA R. DEERE, Plaintiffs,
v.
AMERICAN WATER WORKS COMPANY, INC., Defendant.

ORDER ON PLAINTIFFS' MOTION TO COMPEL AND FOR SANCTIONS

MARK J. DINSMORE, Magistrate Judge.

This matter comes before the Court on Plaintiffs' Motion to Compel and for Sanctions. [Dkt. 86.] For the following reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' Motion.

I. Background

On June 26, 2014, Gregory and Gina Deere ("Plaintiffs"), sued American Water Works Company, Inc., d/b/a Indiana American Water Co., Inc. ("Defendant" or "American Water"). [Dkt. 1.] Plaintiffs allege that Defendant was responsible for providing water services on Plaintiffs' property, but that Defendant negligently failed to maintain Plaintiffs' water meter. [ Id. ¶¶ 30, 33, 60.] This failure allegedly caused the ground around the water meter to collapse, which in turn caused injuries to Gregory Deere. [ Id. ¶¶ 34, 48, 49.] Plaintiffs now assert claims for negligence and loss of consortium. [ Id. ¶¶ 60-69.]

On September 4, 2014, Defendant filed an "Amended Motion to Dismiss for Lack of Jurisdiction." [Dkt. 36.] Defendant asserted two grounds for dismissal: 1) lack of diversity jurisdiction and 2) the presence of a pending state case involving the same matter. [ Id. ]

Defendant's first argument was based on the premise that "American Water Works Company" was not the proper entity for Plaintiffs to sue. [Dkt. 37 at 1.] Defendant argued that American Water was merely a "holding company" that was "not responsible in any way for the allegations of negligence" in Plaintiffs' complaint. [ Id. at 1-2.] Instead, Defendant maintained that the proper party was "Indiana American Water Company, Inc." ("Indiana Water"), which Defendant alleged was a citizen of Indiana. [ Id. at 2.] Because Plaintiffs are also citizens of Indiana, naming Indiana Water as a Defendant would have eliminated diversity of citizenship, thereby depriving this Court of jurisdiction. [ See id. at 2.]

Defendant's second argument for dismissal was based on Plaintiffs' August 5, 2014 filing of a state court action against Indiana Water in the Tippecanoe County Circuit Court. [ Id. at 3.] Defendant claimed that the allegations in the state case were substantially identical to the allegations in Plaintiffs' complaint in this case, such that "there is no basis for this court to exercise or maintain jurisdiction over this cause." [ Id. ]

On September 29, 2014, Defendant filed a "Second Amended Motion to Dismiss for Lack of Jurisdiction." [Dkt. 45.] This time, Defendant asserted that the Court should dismiss the case under Fed.R.Civ.P. 12(b)(7) because Plaintiffs had failed to join a party-Indiana Water-as required by Rule 19. [ Id. ] Defendant withdrew its first "Amended Motion to Dismiss for lack of Jurisdiction, " [ id. ], but the Second Amended Motion to Dismiss remains pending.

On November 21, 2014, Plaintiffs served their First Set of Interrogatories on Defendant. [ See Dkt. 86 ¶ 1.] Defendant's responses were due on December 22, 2014, see Fed.R.Civ.P. 33(b)(2), but Defendant did not respond by that date. [ See Dkt. 86 ¶ 1.] On December 29, 2014, Defendant then filed a motion for an extension of time to respond. [Dkt. 77.] The Court granted that motion and gave Defendant until January 20, 2015 to respond. [Dkt. 79.]

Instead of responding, Defendant on January 20, 2015 filed a motion to stay discovery. [Dkt. 82.] One week later, the Court denied that motion, [Dkt. 83], and the next day, the parties conferred before the Court to try to resolve their dispute. [Dkt 84.] They were unable to do so. [ Id. ] The Court accordingly ordered Defendant to serve its responses to Plaintiffs' interrogatories by January 29, 2015 and authorized Plaintiffs to file a motion to compel if the responses were not served by that time. [Dkt. 84.]

Defendant met the January 29 deadline, [ see Dkt. 85], but Plaintiffs considered Defendant's responses to be "evasive and incomplete." [Dkt. 86 ¶ 10.] Plaintiffs conferred with Defendant to try to resolve this issue, but the parties were unable to reach an agreement, and on February 10, 2015, Plaintiffs filed the currently pending Motion to Compel and for Sanctions. [Dkt. 86.] Plaintiffs ask the Court to 1) compel Defendant to respond to interrogatories two through twenty-five in Plaintiffs' First Set of Interrogatories; and 2) award Plaintiffs their attorney's fees and enter sanctions against Defendant for their alleged failure to comply with the Court's orders. [ Id. at 4.] On March 12, 2015, the Court held a hearing to address Plaintiffs' motion.

II. Discussion

The Court first considers Plaintiffs' motion to compel and then considers Plaintiffs' request for attorney's fees and sanctions.

A. Motion to Compel

A party seeking discovery may move "may move for an order compelling an answer" to an interrogatory if the party to whom the interrogatory is directed "fails to answer[.]" Fed.R.Civ.P. 37(a)(3)(B). For the purposes of such motions, an "evasive or incomplete" answer is treated as a failure to answer. Fed.R.Civ.P. 37(a)(4). Plaintiffs in this case contend that Defendant's answers to interrogatories two through twenty-five were in fact "evasive or incomplete, " such that the Court may appropriately order a more extensive response. [Dkt. 87 at 14-15.]

Plaintiffs' main argument is that Defendant's "purported responses were not its own." [ Id. at 15.] Instead, Defendant responded to each interrogatory by stating "[a]ll information [American Water] has regarding the incident comes from [Indiana Water.] [Indiana Water] is a wholly-owned subsidiary corporation of [American Water.] [American Water] provides herewith the text of the answers to these identical interrogatories provided by [Indiana Water] on January 16, 2015, in Gregory and Gina Deere v. Indiana American Water Company, Inc., Tippecanoe County Circuit Court, Cause No. 79C01-1408-CT-00020" (hereinafter the "Qualifying Paragraph"). [ See Dkt. 87-3 (Def.'s Resps. to Pls.' Interrogs.).] Defendant then reproduced the response that its subsidiary, Indiana Water, had provided for each of Plaintiffs' interrogatories. [ See id. ]

Plaintiffs assert that these answers are insufficient because they "fail to indicate what information Defendant actually has itself." [Dkt. 87 at 15.] They may indicate what Indiana Water knew, and they may indicate that all of American Water's information did in fact come from Indiana Water, but Plaintiffs believe the answers do not unequivocally establish the knowledge that American Water had. [ See id. ] Plaintiffs therefore contend that the responses "unfairly inhibit Plaintiffs from establishing their case." [ Id. ] Whether this argument has any merit depends on the specific interrogatory at issue, and the Court will thus address Plaintiffs' contention when ruling on each interrogatory.

In addition to the Qualifying Paragraph, Defendant's answers to Plaintiffs' interrogatories included a "general objection" that the interrogatories were "improper given the pending motion to dismiss." [Dkt. 87-3.] Defendant also objected "on grounds of lack of jurisdiction, improper venue and that it is not the proper party for Plaintiffs' claims." [ Id. ]

These objections are not appropriate. As an initial matter, such general objections are entitled to little if any weight. See, e.g., Novelty, Inc. v. Mountain View Mktg., Inc., 265 F.R.D. 370, 375 (S.D. Ind. 2009) ("[G]eneral objections' made without elaboration, whether placed in a separate section or repeated by rote in response to each requested category, are not objections' at all-and will not be considered."). In addition, Defendant's asserted bases for the objections are not proper reasons for refusing to answer discovery requests: the Court has already denied Defendant's motion to stay discovery pending resolution of its motion to dismiss, [ see Dkt. 83], and any issues regarding jurisdiction, venue, or proper joinder of parties will be addressed when the Court rules on that motion-not when addressing Plaintiffs' discovery requests. Finally, Defendant acknowledged at the hearing that it had not withheld any information from its responses on the basis of its general objections. [Motion to Compel Hr'g, March 12, 2015 at 9:00.] It would therefore be meaningless to sustain these objections, and the Court accordingly OVERRULES Defendant's "general objection."

Finally, Defendant's responses to Plaintiffs' interrogatories incorporated numerous objections that Indiana Water had asserted in its response to Plaintiffs' interrogatories in Plaintiffs' state court case. [ See, e.g., Dkt. 87-3 at 5, 9, 14.] The party objecting to a discovery request bears the burden to show why a particular discovery request is improper. Cunningham v. Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009). Further, that party must show "with specificity" that the request is inappropriate. Id. "[G]eneral assertions" of hardship will not suffice, Schaap v. Executive Indus., Inc., 130 F.R.D. 384, 387 (N.D. Ill. 1990), nor will "reflexive invocation" of the "often abused litany that the requested discovery is vague, ambiguous, overly broad, unduly burdensome or [irrelevant.]" Cunningham, 255 F.R.D. at 478 (citation omitted). With these principles in mind, the Court will evaluate the propriety Defendant's objections with respect to each specific interrogatory at issue.

B. Plaintiffs' Specific Interrogatories

Interrogatory Number Two states:

State the name, address, and telephone number of each individual: (a) who witnessed the INCIDENT[1] or the events occurring immediately before or after the INCIDENT; (b) who heard any statements made about the INCIDENT by any individual at the scene; and (c) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by the Federal Rules of Civil Procedure).

[Dkt. 87-3 at 3.] Defendant answered with the Qualifying Paragraph and then reproduced the response from Indiana Water: "Besides Gregory Deere, Defendant is not aware of any witnesses to this incident." [ Id. ]

As described above, Plaintiffs assert that this response was evasive and incomplete, but the Court does not agree. The interrogatory asks for facts known to American Water or to anyone acting on behalf of American Water. By including the Qualifying Paragraph, American Water indicated that "all" of its knowledge about the incident came from Indiana Water, [ see id. ], and by incorporating the response from Indiana Water, American Water relayed that knowledge. In doing so, American Water provided a complete answer to the interrogatory. Plaintiffs may not be pleased with the relatively brief response, but if "all" of American Water's information came from Indiana Water, and if American Water already included the response from Indiana Water, then Defendant has no more information to provide. The Court therefore DENIES Plaintiffs' motion with respect to Interrogatory Number Two.

Interrogatory Number Three states:

For each of your employees physically present at the time and place of the INCIDENT and those employees who were physically present on the day of the INCIDENT, please state: (a) his or her name, address and telephone number; (b) job title as of date of INCIDENT; (c) whether she or he was on duty at the time of the INCIDENT; and (d) the job or function she or he was performing at the time of the INCIDENT.

[Dkt. 87-3 at 4.] Defendant answered with the Qualifying Paragraph and Indiana Water's response: "There were no employees of [Indiana Water] present at the time this incident occurred. After the incident occurred, employees, Roy Staley and Shannon Gaylord reported to the location." [ Id. at 4-5.]

This response is insufficient. Plaintiffs' interrogatory is directed at American Water and asks whether American Water had any employees present at the scene of the incident. It is thus non-responsive for Defendant to indicate that Indiana Water had employees who reported to the location. Defendant's answer may well be that it had no employees at the scene of the alleged incident, but if that is the case, Defendant must say so. The Court accordingly GRANTS Plaintiffs' motion to compel with respect to this interrogatory. Defendant shall provide a complete and unequivocal response within fourteen (14) days of the date of this order.

Interrogatory Number Four states:

Have YOU OR ANYONE ACTING ON YOUR BEHALF interviewed any individual concerning the INCIDENT? If so, for each individual state: (a) the name, address, and telephone number of the individual interviewed; (b) the date of the interview; and (c) the name, address, and telephone number of the PERSON who conducted the interview.

[Dkt. 87-3 at 5.] Defendant responded with the Qualifying Paragraph and then provided Indiana Water's response. [ Id. at 5-6.] That response, in turn, objected to the interrogatory on the grounds that it called for information protected by the insurer-insured privilege and the attorneyclient privilege. [ Id. at 6 (citing Richey v. Chappell, 594 N.E.2d 443, 446 (Ind. 1992)).] It then stated that two Indiana Water employees had briefly spoken with Gregory Deere. [ Id. ]

As with Defendant's answer to Interrogatory Number Three, the answer to this interrogatory is non-responsive: Plaintiffs asked if American Water had interviewed anyone; the response that two employees of Indiana Water had spoken with Gregory Deere thus does not answer the question asked. Further, Defendant's objections are baseless: the attorney-client privilege and the insurer-insured privilege protect the substance of communications, not the sort of factual details requested in the interrogatory. See, e.g., Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 453 (N.D. Ill. 2006) ("Communications from an attorney to a client are privileged if the statements reveal, directly or indirectly, the substance of a confidential communication by the client."); Richey, 594 N.E.2d at 446 (emphasis added) ("[P]rivilege attaches to an insured's statement given to the insurer for possible use by the insured's attorney."). The Court accordingly OVERRULES Defendant's objections and orders Defendant to provide a complete and unequivocal response to Plaintiffs' Interrogatory Number Four within fourteen (14) days of the date of this order.

Interrogatory Number Five states:

Have YOU OR ANYONE ACTING ON YOUR BEHALF obtained a written or recorded statement from any individual concerning the INCIDENT? If so, for each statement state: (a) the name, address, and telephone number of the individual from whom the statement was obtained; (b) the name, address, and telephone number of the individual who obtained the statement; (c) the date the statement was obtained; and ...

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