Hunt v. Hubler Chevrolet, Inc.

          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 ...