United States District Court, N.D. Indiana, Hammond Division
TRUSTEES OF THE TEAMSTERS UNION NO. 142 PENSION FUND, Plaintiffs,
v.
UNDERGROUND INCORPORATED, BOYD CONSTRUCTION COMPANY INCORPORATED, and LAKE GEORGE MATERIAL AND SUPPLY COMPANY, INC., Defendants.
OPINION AND ORDER
Andrew
P. Rodovich United States Magistrate Judge
This
matter is before the court on the Motion to Compel Discovery
[DE 20] filed by the plaintiffs, Trustees of the Teamsters
Union No. 142 Pension Fund, on April 23, 2019. For the
following reasons, the motion is GRANTED.
Background
The
plaintiffs initiated this matter on November 1, 2018. On
February 1, 2019, at the Rule 16 Preliminary Pretrial
Conference the plaintiffs served Initial Disclosures on the
defendants. Additionally, on February 1, 2019, the plaintiffs
served Plaintiffs' First Interrogatories and
Plaintiffs' First Request for Production of Documents on
the defendant, Underground Incorporated. On February 5, 2019,
the plaintiffs served via email and first class mail
Plaintiffs' First Interrogatories and Plaintiffs'
First Request for Production of Documents on the defendants,
Boyd Construction Company Incorporated and Lake George
Material and Supply Company, Inc.
The
plaintiffs have indicated that the defendants failed to serve
initial disclosures, answer interrogatories, respond to the
document requests, or provide all responsive documents for
review and copying. Pursuant to N.D. Ind. L.R. 37-1, the
plaintiffs attached a certification indicating that they
attempted to resolve this discovery dispute with the
defendants before requesting court intervention. The
defendants have not filed a response in opposition, and the
time to do so has passed.
Discussion
A party
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 . . . ”
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)).
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. Federal Rule of Civil
Procedure 37(a)(3)-(4). 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) (citation 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) (citation
omitted). 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
(internal quotations and citations omitted). Rather, the
court, under its broad discretion, considers “the
totality of the circumstances, weighing the value of material
sought against the burden of providing it, and taking into
account society's interest in furthering the
truth-seeking function in the particular case before the
court.” Berning v. UAW Local 2209, 242 F.R.D.
510, 512 (N.D. Ind. 2007) (internal quotations and citations
omitted); see Hunt v. DaVita, Inc., 680 F.3d 775,
780 (7th Cir. 2012) (explaining that the district court has
broad discretion in supervising discovery).
The
defendants did not respond or object to the present motion to
compel. Therefore, they did not meet their burden to
demonstrate that the requested discovery is improper. The
plaintiffs have attempted in good faith to resolve these
discovery disputes before requesting court intervention.
“The
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 his
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). In addition, Federal
Rule 37(c)(1) states that a party who fails to disclose,
provides false or misleading disclosure, or refuses to admit
information required by Rule 26(a) without “substantial
justification” may be sanctioned unless such failure
was “harmless.” Musser v. Gentiva Health
Servs., 356 F.3d 751, 755 (7th Cir. 2004). Thus, Rule
37(a) is a fee-shifting rule, and the loser must pay unless
it demonstrates that the movant filed the motion before
attempting to obtain the discovery in good faith without
court action, its position was “substantially
justified, ” or other circumstances make an expense
award unjust.
Because
the defendants have not filed a response to the present
motion, they have not demonstrated that the plaintiffs filed
the motion to compel before attempting to obtain the
discovery in good faith, that their position was
substantially justified, or that other circumstances make an
expense award unjust.
Based
on the foregoing reasons, the court hereby
GRANTS the Motion to Compel Discovery [DE
20]. The defendants are ORDERED to serve
initial disclosures, as well as provide full and complete
responses to Plaintiffs' Interrogatories and Requests for
Production of Documents with all responsive documents within
fourteen (14) days of this Order. The plaintiffs are
DIRECTED to file an affidavit ...