United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON PLAINTIFF'S MOTION TO COMPEL
Marl
J. Dinsrmore United States Magistrate Judge Southern District
of Indiana
This
matter is before the Court on Plaintiff's Motion to
Compel Responses to Plaintiff's First Interrogatories and
Requests for Production. [Dkt. 41.] For the
reasons set forth below, the Court GRANTS
Plaintiff's motion.
I.
Background
In this
action, Plaintiff alleges on April 9, 2018 she
“purchased a new [Trax] from Defendants[, ]”
pursuant to a Retail Installment Contract and Security
Agreement, traded in a Chevrolet HHR as a $550.00 trade
allowance value toward the purchase, and paid a down payment
totaling $1, 500.00. [Dkt. 1 at 2.] On April 12,
2018, Plaintiff contends she inquired about a return period
for the car but was told by Defendants there was no such
option. [Dkt. 1 at 3.] On April 17, 2018, Plaintiff
stated she received communication from the Defendants that
she must return the car to the dealership or that it would be
reported as stolen. [Dkt. 1 at 3.] After finishing
dinner with her two-year old son on the evening of April 17,
2018, Plaintiff was unable to start the vehicle, while parked
in the lot outside the restaurant. [Dkt. 1 at 3-4.]
Plaintiff contacted Hubler Automotive Group, Finance
Department, to investigate the disabled car and stated she
was told that “Defendants' threat to report the car
as stolen was merely a bluff because Defendants had no right
to repossession of the car.” [Dkt. 1 at 4.]
During or after her call to Hubler Finance, the Trax car
alarm went off and “six police cars surrounded
Plaintiff and her two-year-old son in the Trax . . . . Two of
the police officers pointed guns at Plaintiff's head and
ordered her out of the Trax.” [Dkt. 1 at 4.]
Police officers handcuffed the Plaintiff while assessing the
situation; Plaintiff stated police told her they were
investigating a stolen car report. [Dkt. 1 at 4.]
After reviewing Plaintiff's paperwork regarding the
vehicle transaction, Plaintiff stated “police expressed
dismay that the Trax had been falsely reported as stolen,
removed her handcuffs, and apologized . . . .”
[Dkt. 1 at 4.] The Trax was unable to be started via
its OnStar system, and Plaintiff asserted that a towing
company called to the scene “confirmed that Defendants
disabled the Trax through a remote system.” [Dkt. 1
at 5.]
On
April 18, 2018, Plaintiff attempted to recover her trade in
vehicle and her down payment from Defendants and claimed in
order to receive her down payment, Defendants tried to
persuade Plaintiff to sign a settlement agreement and
release, which she did not sign, to ultimately waive
Plaintiff's rights. [Dkt. 1 at 5.] On May 16,
2018, Plaintiff filed her complaint alleging the following
counts: 1). Violation of 42 U.S.C. § 1981 citing race as
a “motivating factor in Defendants' acts to prevent
Plaintiff from enjoying the benefits and privileges afforded
to her by law under the Retail Installment Contract and
Security Agreement, ” 2). Violation of 42 U.S.C. §
1982 alleging Defendants “deprived Plaintiff of the
same right to personal property that is enjoyed by white
citizens, ” 3). Violation of the Indiana Deceptive
Trade Practice Act, Ind. Code §§ 24-5-0.5-1 et
seq., 4). Wrongful Repossession, 5). Conversion, 6).
Breach of Contract, 7). Assault, 8). Defamation, and 9).
Intentional Infliction of Emotional Distress. [See Dkt.
1.]
On
August 21, 2018, Plaintiff served her First Request for
Interrogatories and Requests for Production on
Defendants. [Dkt. 41; Dkt. 42-3; Dkt.
42-5]. Defendants submitted their initial responses to
Plaintiff's discovery requests on October 23, 2018.
[Dkt. 49 at 2.] Defendants additionally provided
supplemental responses to Plaintiff's discovery
on October 23, 2018; Defendants submitted revised
supplemental responses to Plaintiff's same discovery and
a privilege log on November 16-19, 2018. [Dkt. 49 at
2.] After the October 26, 2018 Discovery Conference held
with the Magistrate Judge, the Court authorized the Plaintiff
to file a motion to compel. [Dkt. 41 at 1.]
Plaintiff filed her Motion to Compel Responses to
Plaintiff's First Interrogatories and Requests for
Production on November 27, 2018. [See Dkt.
41.].
In
relevant part, the Plaintiff's motion moves the Court to
issue an order to compel Defendants to 1). “produce
Defendant Bradley Automotive Group, Inc.'s 2017 tax
returns . . . and 2018 tax returns after they are
filed”, 2). “produce responsive corporation
documentation for Bradley Automotive Group, Inc.”, 3).
“provide responsive documents regarding Plaintiff's
financing or respond that there are no responsive
documents” regarding steps taken to finance the
Plaintiff's purchase; 4). “produce responsive
documents related to On-Star and the disabling of
Plaintiff's car”, 5). “produce documents
related to [Defendants'] other reports or attempted
reports of stolen cars”, and 6). order Defendants to
“directly respond to Plaintiff's Interrogatories
Nos. 4, 5, 7, and 9, or clearly state there is no responsive
information[.]” [Dkt. 41-1 at 1-2.]
Plaintiff's motion additionally moves the Court to find
Defendants waived all objections by failing to timely respond
to Plaintiff's discovery requests pursuant to the Federal
Rules of Civil Procedure and to award the Plaintiff
appropriate fees and costs affiliated with filing
Plaintiff's Motion to Compel. [Dkt. 41-1 at
1-2.]
II.
Legal Standard
A party
may seek an order to compel discovery when an opposing party
fails to respond to discovery requests or has provided
evasive or incomplete responses. Fed.R.Civ.P. 37(a)(2)-(4).
The burden “rests upon the objecting party to show why
a particular discovery request is improper.” Kodish
v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447,
449-50 (N.D. Ill. 2006). The objecting party must show with
specificity that the request is improper. Graham v.
Casey's Gen. Stores, 206 F.R.D. 251, 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.” Burkybile v. Mitsubishi Motors,
Corp., 2006 WL 2325506 at *6 (N.D. Ill. 2006) (internal
citations omitted).
Under
Federal Rule of Civil Procedure 26(b)(1), generally
“[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the
case.” Relevancy is construed broadly and encompasses
“any matter that bears on, or reasonably could lead to
other matter[s] that could bear on, any issue that is or may
be in the case.” Chavez v. Daimler Chrysler,
206 F.R.D. 615, 619 (S.D. Ind. 2002) (internal citations
omitted). Relevant information does not need to be
“admissible to be discoverable.” Fed.R.Civ.P.
26(b)(1). The Court addresses the discovery requests in turn.
III.
Discussion
A.
Waiver
Under
Federal Rule of Civil Procedure 33(b)(2), “The
responding party must serve its answers and any objections
within 30 days after being served with the
interrogatories.” Regarding production of documents,
Federal Rule of Civil Procedure 34(b)(2)(A) requires that
“[t]he party to whom the request is directed must
respond in writing within 30 days after being served . . .
.” Plaintiff served her First Requests for
Production and Interrogatories on August 21, 2018 and
did not receive Defendants' responses until October 10,
2018; a total of “50 days after receiving the discovery
via-email (the discovery was also served via U.S. Mail on the
same day).” [Dkt. 42 at 3.] On September 26,
2018, after discovery responses were to be due, Plaintiff
contacted Defendants to inquire about when the responses
would be received. [Dkt. 49-1 at 1.] At that time,
Defendants acknowledged and apologized for the delay of their
responses and stated, “We are just waiting on signature
and any additional documents for the discovery[.]”
[Dkt. 49-1 at 1.]
On
September 27, 2018, during a telephonic status conference
with the Magistrate Judge, Defendants represented to the
Court they had submitted an email to Plaintiff in effort to
request more time for discovery. Plaintiff argued Defendants
made no attempt to request an extension to submit discovery
responses. [Dkt. 42 at 3.] The Court questioned the
veracity of the Defendants' representation, after it
found no evidence to support the communication of an
extension request. Defendants' Response to
Plaintiff's Motion stated that though during the
September 27, 2018 initial pretrial conference with the
Court, “Plaintiff objected” to the
Defendants' discussion of an extension to time to respond
to discovery, “Defendants believed the parties agreed
at that time that responses would be submitted by October 10,
2018.” [Dkt. 49 at 1-2.] Defendants'
Response also noted a “dispute” as to
“whether or to what exten[t] this occurred.”
[Dkt. 49 at 2.] Further, the Court had no extension
to rule upon as evidenced by its September 27, 2018 Minute
Entry.[1] [See Dkt. 28.]
“A
shorter or longer time [to respond to discovery] may be
stipulated to under Rule 29 or be ordered by the
court.” See Fed. R. Civ. P. 33(b)(2);
Fed.R.Civ.P. 33(b)(2)(A). The Court finds no evidence of an
extension request or agreed upon stipulation by the parties.
“Any ground not stated in a timely objection is waived
unless the court, for good cause, excuses the failure.”
Fed.R.Civ.P. 33(b)(4). The Court finds Defendants have not
demonstrated good cause for their discovery delay when
Plaintiff had to contact Defendants to inquire about the
receipt of discovery, Defendants did not attempt to make an
extension request prior to the 30-day discovery deadline, and
Defendants took excessive time to obtain
“signatures” they conveyed to Plaintiff to be the
only reason for delay.[2] “Failure to timely assert objections
to discovery requests may result in a waiver of all
objections that could have been seasonably asserted.”
Autotech Techs. Ltd. P'ship v. Automationdirect.Com,
Inc., 236 F.R.D. 396, 398 (N.D. Ill. 2006); Stelor
Prods., Inc. v. Oogles N Googles, No.
1:05-cv-0354-DFH-TAB, 2008 WL 5062786, at *1-*4 (S.D. Ind.
Nov. 21, 2008) (waiver of all objections for failure to
timely object and disregard of court order). Defendants
argued delay of discovery responses in this case do not
warrant waiver, as this occurrence was not a “most
egregious violation, ”[3] “there was no substantial
delay, no prejudice to Plaintiff . . . .” [Dkt. 49
at 4.] The Court does not agree:
Throughout the range of the law, there are time limits
imposed on litigants at every stage of the case: some are
mandatory and admit of no deviations; others are more
flexible. But in each instance, lawyers who do not pay heed
to deadlines do so at substantial peril to their and their
clients' interests. Even a day's delay can be fatal.
Autotech Techs. Ltd. P'ship, 236 F.R.D. at 399.
Plaintiff
contended once discovery responses were received on October
10, 2018, “[Defendants] objected to every request and
did not produce a single document.” [Dkt. 41 at
1.] Through the submission of supplemental
responses and revised supplemental responses,
Defendants admit “we have removed substantially all the
objections that previously existed . . . . Additionally, even
though we have asserted an objection, we have answered all
the interrogatories where an objection was lodged in an
extensive manner.” [Dkt. 49-5 at 1-2.] The
Court finds that the Defendants' have waived all
objections to Plaintiff's First Interrogatories
and Requests for Production, both the initial and
remaining objections, for their failure to timely respond
under the Federal Rules of Civil Procedure. In conjunction
with its finding of waiver, the Court will continue its
analysis of each specific discovery request presented in
Plaintiff's Motion to Compel along with each of
Defendants' remaining objections.
B.
Request for Production No. 17: Tax Returns
Plaintiff's
Request for Production No. 17, submitted to all Defendants,
requested production of Defendants' “tax returns
(state, federal, and local) and supporting schedules for the
past 3 years.” [Dkt. 42-3 at 8.] Defendants asserted an
objection in its revised supplemental responses for
Hubler Chevrolet and Bradley Management Group that the
information sought is “irrelevant and unlikely to lead
to the discovery of admissible evidence.” [Dkt.
42-2 at 8; Dkt. 42-1 at 6.] Defendants argued
information present on the requested tax returns was not
“at issue in this case” and specifically stated
“[t]he financial status of [Bradley Management Group] .
. . was not involved in the allegations being made against
Plaintiff.” [Dkt. 42-2 at 8; Dkt. 42-1
at 6.] The Court will not address the
Defendants' objections regarding Request for Production
No. 17 because the parties narrowed the document request and
agreed to a more limited production.
At the
October 26, 2018 Discovery Conference, the Plaintiff and
Defendants stipulated to the production of “2017 tax
returns only, to be supplemented with 2018 returns after they
are filed.” [Dkt. 42 at 5.] Defendants
produced the 2017 tax returns for Hubler prior to the filing
of Plaintiff's Motion to Compel but had not yet
provided 2017 tax returns for Bradley Management Group.
[Dkt. 42 at 6.] Defendants contended during the
Discovery Conference they “believe[d] there was only
reference to Hubler's 2017 tax return . . . . It was not
until Plaintiff's November 21, 2018 email, that
Defendants learned that Plaintiff also wanted the tax return
for Bradley.” [Dkt. 49 at 6.] Defendants
produced the Bradley tax return shortly after the
Plaintiff's Motion to Compel was filed.
[Dkt. 49 at 6.] Plaintiff's Reply in Support
of Plaintiff's Motion to Compel, filed on December
28, 2018, acknowledged “only one issue was resolved:
Defendants provided the 2017 tax return for Defendant Bradley
Automotive . . . .” [Dkt. 52 at 1.] Thus, the
Court GRANTS Plaintiff's Motion to Compel
with regard to Request for Production No. 17,
and orders the Defendants to produce both 2017 and 2018 tax
returns for Hubler and Bradley Management Group.
C.
Request for Production No. 18: Corporate
Records
Plaintiff's
Request for Production No. 18 submitted to Defendants
requested production of “Your official corporate
records including: (i) bylaws; (ii) articles of
incorporation; (iii) organization charts; and (iv) lists of
shareholders.” [Dkt. 42-3 at 8.] Defendants
raise relevancy and the unlikeliness the production would
lead to discovery of admissible evidence objections in their
revised supplemental responses; Defendants
additionally argued “the corporate status of Defendant
is not at issue.” [Dkt. 42-2 at 8; Dkt.
42-1 at 6.] Plaintiff asserted that while Defendants
objected to the request, production of “particularly
unhelpful documents . . . the publicly available information
. . . the 1961 Certificate of Incorporation for Nankivell
Chevrolet, Inc. (without any documents tying Nankivell
Chevrolet, Inc. to Hubler Chevrolet, Inc. or Hubler
Automotive Group)” occurred. [Dkt. 42 at 6.]
Defendants
contend that Bradley Management Group may be an improper
party and that Bradley “does not have any other
documentation regarding its relationship or corporate
formation, including any type of organization chart, except
that which has already been provided.” [Dkt. 49-6
at 5; Dkt. 49 at 6.] Defendants claimed that
Bradley Management Automotive “does not sell cars nor
deal with Hubler Chevrolet customers.” [Dkt. 42-1
at 2.] In further communication, Defendants contend
Bradley Management Group “operates the on-site repair
shop, ” “is essentially the clerical/accounting
wing, ” and “forwards any deal package to the
finance company.” [Dkt. 49-6 at 2; Dkt. 42
at 6.] In Defendants' Response, Defendants
suggest that for those “additional questions regarding
these corporate entities for which documentation does not
exist, [Plaintiff] is free to pursue it through a Rule
30(B)(6) deposition(s).” [Dkt. 49 at 7.]
The
Court finds the Defendants have waived their objections to
Plaintiff's Request for Production No. 18 due to their
untimely discovery responses. Furthermore, even if the waiver
had not occurred, the Court would overrule Defendants'
objections to Plaintiff's Request for Production No. 18
on the merits.
When discovery sought appears relevant, the party resisting
the discovery has the burden to establish the lack of
relevance by demonstrating that the requested discovery is of
such marginal relevance that the potential harm occasioned by
discovery would outweigh the ordinary presumption in favor of
broad disclosure.
Chavez v. Daimler Chrysler Corp., 206 F.R.D. 615,
619 (S.D. Ind. 2002). As relevance is construed broadly, the
Court finds Plaintiff's request for the specified
corporate documents of both Defendants are “relevant to
any party's claim or defense and proportional to the
needs of the case, considering the importance of the issues
at stake in the action [and] . . . the importance of the
discovery in resolving the issues . . . .” Fed.R.Civ.P.
26(b)(1). Plaintiff's corporate document requests seek to
determine the operational structure and connection between
Defendants Hubler and Bradley Automotive, as it pertains to
the Plaintiff's transaction involving purchase of the
Trax, in an effort to determine proper parties tied to
Plaintiff's claims. As Defendants have placed Defendant
Bradley Management Group's role “at issue, ”
contending it is an “improper party” in the
litigation, it would follow that discovery of the requested
corporate documentation would shed further light on the
determination of these assertions. The Court finds the
Defendants have failed to carry their burden to show lack of
relevance, and in turn, also rejects Defendants'
admissibility objection. Discovery of information, under
Federal Rule of Civil Procedure 26(b), is not determinative
upon the question of admissibility of evidence; that which is
inadmissible, is still discoverable “unless otherwise
limited” by the Court. Fed. R. Civ. P 26(b)(1).
The
Court finds those corporate documents that were produced to
Plaintiff, namely publicly found information and certificate
of incorporation, provide little to no nexus to Defendant
Hubler and fail to comply with Plaintiff's discovery
request. In latter response to Plaintiff's disputed
discovery items, Defendants claim “Bates 96-157 are
articles of incorporation and corporate status documents we
have for Hubler and Bradley Mgmt Group” and additional
organizational questions perhaps are more suited for
deposition discovery.[4] [Dkt. 49- 5 at 4;
Dkt. 49 at 7.] “Federal Rule 37 addresses
discovery disputes and is designed to be used by litigants to
compel a response to discovery requests where none has been
made, or where the response is so inadequate that it is
tantamount to no response at all.” Tomanovich v.
Glen, No. IP 01-1247 CY/K, 2002 WL 1858795, at *2 (S.D.
Ind. Aug. 13, 2002). Plaintiff's Request for Production
No. 18 narrowly tailors the corporate document information
sought; Defendants' limited production response does not
comply with Federal Rule of Civil Procedure 37 and
constitutes an “evasive or incomplete disclosure”
that neither answers the specifications of the discovery
request, nor provides clarity regarding what information does
or does not exist. “Plaintiff seeks a clear response
that Defendants possess no other documentation.”
[Dkt. 52 at 4.]
For the
foregoing reasons, the Court GRANTS
Plaintiff's Motion to Compel with regard to Request for
Production No. 18, and orders Defendants Hubler
and Bradley Management Group to provide a complete and
unequivocal ...