United States District Court, N.D. Indiana, Hammond Division
Fred A. Colvin, Chairman of the Board of Trustees, on behalf of BRICKLAYERS UNION LOCAL NO. 6 OF INDIANA PENSION FUND, et al., Plaintiffs,
ALAN D. STENSRUD, d/b/a COUTURE SURFACES, et al., Defendants.
OPINION AND ORDER
P. Rodovich United States Magistrate Judge
matter is before the court on the Verified FRCP, Rule
37(a)(3)(B) Motion, With Self-Contained Brief, to Compel
Defendant Watson Commercial Group, Inc., d/b/a Couture
Surfaces to Respond to Plaintiffs' Written Discovery [DE
25] filed by the plaintiffs, Fred A. Colvin, Chairman of the
Board of Trustees, on behalf of Bricklayers Union Local No. 6
of Indiana Pension Fund, et al., on November 2,
2017. For the following reasons, the motion is
plaintiffs initiated this matter on May 24, 2017, to collect
delinquent fringe benefit contributions and deductions that
allegedly are owed by the defendants to the plaintiffs. On
September 1, 2017, the plaintiffs served their First Set of
Interrogatories, First Request for Production of Documents,
and First Request to Admit Facts and Genuineness of Documents
on the defendant, Watson Commercial Group, Inc. d/b/a Couture
Surfaces. The plaintiffs have indicated that Watson responded
to the plaintiffs' first request to admit facts in early
October of 2017. However, the plaintiffs have not received
Watson's answers to the interrogatories or its responses
to the request for production.
to Local Rule 37.1, the plaintiffs filed a certification
indicating that they attempted to resolve this discovery
dispute with Watson before requesting court intervention.
Specifically, to resolve the present dispute the plaintiffs
have mailed a letter, participated in a telephone call,
prepared an additional letter, placed an additional telephone
call, and emailed Watson's attorney regarding the
outstanding discovery. Although Watson allegedly indicated
during a telephone call on September 10, 2017, that it would
produce the documents requested, the plaintiffs have not
received Watson's responses to the discovery. Watson did
not respond or object to the present Motion to Compel.
may “obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any
party, including the existence, description, nature, custody,
condition and location of any books, documents, or other
tangible things.” Federal Rule of Civil Procedure
26(b)(1). For discovery purposes, relevancy is construed
broadly to encompass “any matter that bears on, or that
reasonably could lead to other matter[s] that could bear on,
any issue that is or may be in the case.” Chavez v.
DaimlerChrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind.
2002) (quoting Oppenheimer Fund, Inc. v. Sanders,
437 U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253
(1978)). Even when information is not directly related to the
claims or defenses identified in the pleadings, the
information still may be relevant to the broader subject
matter at hand and meet the rule's good cause standard.
Borom v. Town of Merrillville, 2009 WL 1617085, at
*1 (N.D. Ind. June 8, 2009) (citing Sanyo Laser Prods.,
Inc. v. Arista Records, Inc., 214 F.R.D. 496, 502 (S.D.
Ind. 2003)); see Adams v. Target, 2001 WL 987853, at
*1 (S.D. Ind. July 30, 2001) (“For good cause, the
court may order discovery of any matter relevant to the
subject matter involved in the action.”); Shapo v.
Engle, 2001 WL 629303, at *2 (N.D. Ill. May 25, 2001)
(“Discovery is a search for the truth.”).
may seek an order to compel discovery when an opposing party
fails to respond to discovery requests or has provided
evasive or incomplete responses. Federal Rule of Civil
Procedure 37(a)(2)-(3). The burden “rests upon the
objecting party to show why a particular discovery request is
improper.” Gregg v. Local 305 Ibew, 2009 WL
1325103, at *8 (N.D. Ind. May 13, 2009) (citing Kodish v.
Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447,
449-50 (N.D. Ill. 2006)); McGrath v. Everest Nat. Ins.
Co., 2009 WL 1325405, at *3 (N.D. Ind. May 13, 2009)
(internal citations omitted); Carlson Rests. Worldwide,
Inc. v. Hammond Prof'l Cleaning Servs., 2009 WL
692224, at *5 (N.D. Ind. March 12, 2009) (internal citations
omitted). The objecting party must show with specificity that
the request is improper. Cunningham v. Smithkline
Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009) (citing
Graham v. Casey's Gen. Stores, 206 F.R.D. 253,
254 (S.D. Ind. 2002)). That burden cannot be met by “a
reflexive invocation of the same baseless, often abused
litany that the requested discovery is vague, ambiguous,
overly broad, unduly burdensome or that it is neither
relevant nor reasonably calculated to lead to the discovery
of admissible evidence.” Cunningham, 255
F.R.D. at 478 (citing Burkybile v. Mitsubishi Motors
Corp., 2006 WL 2325506, at *6 (N.D. Ill. Aug. 2, 2006))
(internal quotations and citations omitted).
did not respond or object to the present Motion to Compel.
Therefore, it did not meet its burden to demonstrate that the
requested discovery is improper. The court finds that the
requested information is relevant to the plaintiffs'
claims and that the plaintiffs attempted in good faith to
resolve this discovery dispute before requesting court
intervention pursuant to Local Rule 37.1.
great operative principle of Rule 37(a)(5) is that the loser
pays.” Charles Alan Wright et al., 8B
Federal Practice and Procedure Civil § 2288 at 787
(3d ed. 2014). “Fee shifting when the judge must rule
on discovery disputes encourages their voluntary resolution
and curtails the ability of litigants to use legal processes
to heap detriments on adversaries (or third parties) without
regard to the merits of the claims.” Rickels v.
City of South Bend, Ind., 33 F.3d 785, 787 (7th Cir.
1994). Any loser may avoid payment by showing that its
position was substantially justified. Rickels, 33
F.3d at 787. The failure to disclose is sanctionable and
properly remedied by an order compelling discovery. Federal
Rules of Civil Procedure 37(a)(3)(B), (a)(4), (a)(5);
Lucas v. GC Services, L.P., 226 F.R.D. 328, 329-30
(N.D. Ind. 2004). Federal Rule 37(a)(5)(A) states that the
court shall require sanctions based upon the costs of seeking
a motion to compel. See Stookey v. Teller Training
Distribs., Inc., 9 F.3d 631, 637 (7th Cir. 1993) (citing
the prior section number) (“Rule 37(a)(4) clearly
allows for an award of the expenses incurred in obtaining an
order to compel, including attorney's fees.”).
Sanctions under Rule 37(a)(5) are appropriate unless the
movant filed the motion without attempting in good faith to
obtain the discovery without court action, the party's
nondisclosure was “substantially justified, ” or
other circumstances make an expense award unjust. Federal
Rule of Civil Procedure 37(a)(5)(A).
Watson did not respond to the motion to compel, it did not
demonstrate that the plaintiffs filed the motion to compel
before attempting to obtain the discovery in good faith, that
its position was substantially justified, or that other
circumstances make an expense award unjust.
on the foregoing reasons, the Verified FRCP, Rule 37(a)(3)(B)
Motion, With Self-Contained Brief, to Compel Defendant Watson
Commercial Group, Inc., d/b/a Couture Surfaces to Respond to
Plaintiffs' Written Discovery [DE 25] is
GRANTED. Watson is ORDERED
to provide full and complete responses to the First Set of
Interrogatories and First Request for Production of Documents
within fourteen days of this order. The ...