United States District Court, N.D. Indiana, Fort Wayne Division
SARATOGA POTATO CHIP COMPANY, INC., also known as Old York Potato Chips, et al., Plaintiffs,
CLASSIC FOODS, INC., et al., Defendants.
OPINION AND ORDER
Collins, United States Magistrate Judge
the Court is a Motion to Compel (DE 104) filed on July 5,
2016, by Plaintiffs Saratoga Potato Chip Company, Inc., also
known as Olde York Potato Chips, and Saratoga Potato Chips,
LLC (together, “Saratoga”), seeking to compel
Defendant Balance Foods, Inc. (“Balance”), to
supplement its November 4, 2014, responses to
Saratoga’s First Set of Interrogatories and Requests
for Production of Documents. Balance has not filed a response
to the motion, and the time to do so has now passed. For the
following reasons, Saratoga’s motion will be GRANTED.
Factual and Procedural Background
filed this breach of contract action against Defendants
Classic Foods, Inc. (“Classic”), and Cuetara
Holdings, Inc. (“Cuetara”), in October 2012,
asserting that Classic and Cuetara failed to pay
approximately $368, 646.56 for snack foods ordered from
Saratoga and failed to make payments under an August 2012
agreement settling a prior lawsuit filed by Saratoga on the
matter. (DE 1). In April 2014, the parties stipulated to a
judgment against Classic in the amount of $368, 646.56, which
the Court granted. (DE 57).
2014, Saratoga filed a supplemental pleading, seeking to add
Balance as a defendant liable for Classic’s debt under
theories of alter ego and successor liability. (DE 63).
Saratoga asserted that it had recently discovered that
Classic transferred, without notice to Saratoga, all of its
assets to Balance in an effort to render Classic judgment
proof in this suit. (DE 64). The Court granted
Saratoga’s motion to amend (DE 68), and Saratoga filed
its supplemental complaint adding Balance as a Defendant (DE
September 9, 2014, Saratoga served its First Set of
Interrogatories and Requests for Production on Balance. (DE
104 ¶ 1; DE 104-1). After failing to meet its promised
due date several times, Balance eventually served its
discovery responses on Saratoga on November 4, 2014. (DE 104
¶ 7; DE 104-7). Saratoga, however, contends that
Balance’s discovery responses omitted a substantial
amount of requested information and documents. (DE 104 ¶
8). Saratoga’s counsel has corresponded with
Balance’s counsel on several occasions, requesting that
Balance supplement its discovery responses. (DE 104
¶¶ 9-10, 19). To date, Balance has not done so.
case was automatically stayed with respect to Balance from
October 29, 2015, through May 4, 2016, due to Balance’s
filing for bankruptcy. (DE 97; DE 102). When notifying the
Court concerning the bankruptcy, Balance’s counsel also
filed a motion to withdraw, which the Court denied. (DE 95;
DE 97). At a status conference on May 4, 2016, the bankruptcy
case having been terminated and the automatic stay lifted,
Balance’s counsel advised the Court that it anticipated
filing a motion to dismiss or a motion to transfer by June
15, 2016. (DE 102). No such motion, however, was filed by
14, 2016, Balance’s counsel filed a second motion to
withdraw, which remains pending. (DE 103). In that motion,
counsel represents that Balance has failed to respond to
counsel’s communications and has failed to pay for
counsel’s services, and that counsel’s only
recent contact with Balance has been with its bankruptcy
attorney. (DE 103 ¶ 4).
5, 2016, Saratoga filed the instant motion to compel, asking
that the Court order Balance to supplement its November 4,
2014, discovery responses. (DE 104). Saratoga’s counsel
states in the motion that he contacted Balance’s
attorney, who responded that he had already disclosed all of
the discovery responses that Balance had provided to him. (DE
104 ¶ 19). As stated earlier, Balance has not filed a
response to the motion to compel.
Rule of Civil Procedure 37 permits a party to file a motion
to compel discovery upon “evasive or incomplete
disclosure, answer, or response.” Fed.R.Civ.P. 37(a).
Together with the motion to compel, a party must file
“a separate certification that the party has conferred
in good faith or attempted to confer with the other affected
parties in an effort to resolve the matter raised in the
motion without court action.” N.D. Ind. L.R. 37-1(a);
see Fed. R. Civ. P. 37(a)(1). “A motion to
compel discovery pursuant to Rule 37(a) is addressed to the
sound discretion of the trial court.” Redmond v.
Leatherwood, No. 06-C-1242, 2009 WL 212974, at *1 (E.D.
Wis. Jan. 29, 2009) (citation omitted).
Court finds that Saratoga has adequately attempted to confer
in good faith with Balance in an effort to resolve this
matter without Court action. (DE 105; DE 104-7; DE 104-8);
see Fed. R. Civ. P. 37(a)(1); N.D. Ind. L.R.
37-1(a). Balance, however, has not responded to
Saratoga’s request that Balance supplement its initial
discovery responses, nor has Balance responded to the instant
motion to compel.
review of the motion to compel and its attachments indicates
that Saratoga’s request that Balance supplement its
prior discovery responses (DE 104-7) is appropriate, as many
of Balance’s answers or responses appear incomplete.
See Fed. R. Civ. P. 26(b)(1) (permitting discovery
into “any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs
of the case . . . .”). Consequently, the Court will
GRANT the motion to compel (DE 104) and ...