United States District Court, D. Montana, Butte Division
JEFFREY S. RAPP, Plaintiff,
HAMPTON MANAGEMENT LLC, Defendant.
Jeremiah C. Lynch United States Magistrate Judge.
Hampton Inns Management LLC has filed a motion pursuant to
Federal Rule of Civil Procedure 37 to compel pro se Plaintiff
Jeffrey Rapp to provide complete responses to its first set
of discovery requests and thereafter appear for his
August 29, 2018, Defendant served Plaintiff with its first
set of discovery requests, consisting of 18 interrogatories
and 21 requests for production. (Doc. 46-1). On or about
September 24, 2018, Plaintiff responded with a document
titled “Plaintiff's Objections to Defendant's
First Set of Discovery Requests to Plaintiff.” (Doc.
46-2). Plaintiff provided the same objection to all of
Defendant's discovery requests: “Objection as
irrelevant and inappropriate, as Defendant Has yet too
honestly and truthfully defend, or answered the
complaint.” (Doc. 46-2).
represents to the Court that it conferred with Plaintiff on
or about September 18, 2018, to set a date for his
deposition, and the parties agreed the deposition would be
taken on October 8, 2018, in Bozeman, Montana. (Doc. 46, at
2). Defendant issued Plaintiff a Notice of Deposition
reflecting the agreed upon date and location for the
deposition. (Doc. 46-3). According to Defendant, it was later
informed by Plaintiff that he would not appear for his
deposition unless Defendant first produced Robert Blom and
Doris Flemming for depositions. Defendant explains that in
response, it advised Plaintiff he would need to comply with
the requirements of the Federal Rules of Civil Procedure with
respect to properly noticing and conducting the two
depositions. (Doc. 46, at 2-3).
further represents to the Court that on October 2, 2018,
counsel told Plaintiff during a telephone conversation that
Defendant was hoping to address his deficient discovery
responses and deposition without involving the Court. (Doc.
46, at 3). When asked by Defense counsel whether he intended
to supplement his discovery responses and appear for his
deposition, Plaintiff stated that his discovery responses
were already complete and reiterated that he would not appear
for his deposition unless Blom and Flemming did so first.
(Doc. 46, at 3). On October 12, 2018, Defendant filed this
Rule 37(a) motion to compel Plaintiff to provide complete
discovery responses and appear for his deposition.
litigants in a civil action are entitled to discovery
‘regarding any nonprivileged matter that is relevant to
any party's claim or defense and proportional to the
needs of the case.'” Brewer v. BNSF Railway
Co., 2018 WL 1756432 *1 (D. Mont. Jan. 11, 2018)
(quoting Fed.R.Civ.P. 26(b)(1)). Thus, “if properly
requested, the information must be provided.”
Carlson v. Fedex Ground Package System, Inc., 2012
WL 4760889 *1 (D. Mont. Sept. 12, 2012). “Rule 37 of
the Federal Rules of Civil Procedure provides a mechanism by
which a party seeking discovery may request an order
compelling the opposing party to fulfill its discovery
obligations.” Carlson, 2012 WL 4760889 *1. If
a party fails to respond to interrogatories or requests for
production, the party seeking discovery may move for an order
compelling an answer. Fed.R.Civ.P. 37(a)(3)(B);
Carlson, 2012 WL 4760889 *1. “[A]n evasive or
incomplete disclosure, answer, or response” to a
discovery request “must be treated as a failure to
disclose, answer, or respond.” Fed.R.Civ.P. 37(a)(4).
The party resisting discovery bears the burden of showing why
the discovery should not be allowed. Blankenship v.
Hearst Corp., 519 F.2d 418, 429 (9th Cir.
Rule 37(a)(1), a motion to compel “must include a
certification that the movant has in good faith conferred or
attempted to confer” with the party from whom the
discovery is sought “in an effort to obtain it without
court action.” In addition, District of Montana Local
Rule 26.3(c)(1) states that “[t]he court will deny any
discovery motion unless the parties have conferred concerning
all disputed issues before the motion is filed.” L.R.
26.3(c)(1). Local Rule 26.3 specifies that all motions to
compel discovery must set forth the basis for the motion,
certify that the parties have conferred concerning all
disputed issues, and attach as an exhibit the full text of
the discovery sought and the full text of the response. L.R.
motion to compel satisfies all of these requirements.
Defendant sets forth the basis for its motion and has
attached as an exhibit to its motion the full text of its
first set of discovery requests, thereby demonstrating that
it properly requested discoverable information from
Plaintiff. (Doc. 46-1). Defendant has also attached the full
text of Plaintiff's responses, which are at best
insufficient, and at worst evasive. (Doc. 46-2). In addition,
Defendant has provided the requisite certification showing
that it attempted to confer with Plaintiff to resolve the
disputed discovery issues before filing its motion to compel.
(Doc. 46, at 3). Accordingly, Defendant is entitled to an
order compelling Plaintiff to provide complete responses to
its first set of discovery requests.
are an authorized method of obtaining discovery under the
Federal Rules of Civil Procedure. Under Rule 30(a)(1), a
party “may depose any person, including a party,
without leave of court except as provided in Rule 30(a)(2).
None of the exceptions set forth in Rule 30(a)(2) applies
here, which means that Defendant was entitled to take
Plaintiff's deposition without first obtaining a court
order. Defendant properly noticed Plaintiffs deposition, and
if Plaintiff wanted to be excused from appearing his remedy
was to file a motion for a protective order under
Fed.R.Civ.P. 26(c). Instead, Plaintiff simply advised
Defendant that he would not attend his deposition.
Accordingly, Defendant is entitled to an order compelling
Plaintiff to appear for his deposition after he supplements
his response to Defendant's first set of discovery
reasons set forth above, IT IS ORDERED that Defendant's
motion to compel (doc. 46) is GRANTED. Plaintiff shall
provide complete responses to Defendant's first set of
discovery requests on or before November 16, 2018, and after
being served with proper notice, shall appear for his
deposition. Plaintiff is advised that if he fails to appear