United States District Court, E.D. Louisiana
WELLS ROBY UNITED STATES MAGISTRATE JUDGE.
the Court is a Motion to Compel (R. Doc. 12) filed by
Defendants Mix Bros. Tank Services, Inc. (“Mix
Bros.”) and Dave Morrison (“Morrison”)
(collectively “Defendants”) seeking an order from
the Court to compel Kellie Register (“Register”)
and her minor daughter T.R. (“T.R.”)
(collectively “Plaintiffs”) to respond to their
First Sets of Interrogatories and First Sets of Requests for
Production of Documents. The motion was not opposed. The
motion was submitted on May 10, 2017. For the following
reasons, the Motion to Compel is GRANTED.
action was removed from the 29th Judicial District Court for
the Parish of St. Charles on January 11, 2017. R. Doc. 1. The
Plaintiffs allege that Register was employed by Mix Bros. for
approximately eight years and was permitted to have T.R.
accompany her to work during summer vacation. R. Doc. 1-1, p.
2. On or about June 1, 2016, while the Plaintiffs where
located at the offices of Mix Bros, Defendant John Kenny
(“Kenny”) threw a snap pop, which is a small
pyrotechnic object, at T.R. The snap pop exploded near
T.R.'s face and caused her fear of harm to her body.
Id. at p. 3. At the time, both Kenny and Morrison
laughed at T.R.'s reaction. The following day, Register
confronted Morrision about the incident; however, Morrison
allegedly insulted the Plaintiffs in response and ordered
them to leave. Id. Register did not return to work
the next day after informing Morrison that she could not
return because of emotional distress, anxiety, and concern
for her daughter. Id. Register was allegedly
terminated thereafter. Id.
Plaintiffs also alleged that Morrison sexually assaulted
Register in May 2016 when he approached her and made
non-consensual contact while placing and removing a stack of
papers from Register's chest. Id.
Plaintiffs also allege that Register has a documented history
of anxiety, depression, and related mental health issues
which were frequently triggered by Morrison screaming in the
office and insulting women. Id. at p. 4. Plaintiffs
further allege that Register respectfully requested
accommodations from Morrison, but that she was denied any
accommodation and further subjected to abuse and harassment
until her termination. Id. Plaintiffs also state
that Register complained about Morrison to another immediate
supervisor as well as personnel in Mix Bros.'s Canada
office, but no remedial action was taken. Id. For
all the foregoing, the Plaintiffs have asserted claims
against the Defendants for negligence, violations of the
Family Medical Leave Act, sexual harassment, and a host other
state and federal law claims.
time, Defendants Mix Bros. and Morrison have filed a motion
to compel seeking responses to their respective discovery
requests from the Plaintiffs. R. Doc. 12. The Defendants
state that they served their discovery requests on the
Plaintiffs on February 14, 2017. R. Doc. 12-1, p. 1.
Moreover, counsel for the Defendants made a number of
attempts to obtain the discovery without the Court's
intervention, including the granting of extensions to reply
until April 24, 2017. On April 25, 2017, the Defendants filed
the instant motion after only being provided an authorization
form/release of information form signed by Register.
Id. at p. 1-3. The Defendants also seek an award of
fees in connection with the instant motion.
Standard of Review
of documents, electronically stored information, and things
is governed by Federal Rule of Civil Procedure 34. Rule 34
allows a party to request the production of “any
designated documents or electronically stored
information” or “any tangible things.”
Id. Similarly, Rule 33 allows a party to serve
another party written interrogatories which “must, to
the extent it is not objected to, be answered separately and
fully in writing under oath.” Fed.R.Civ.P. 33(b)(3).
Both Rule 33 and 34 allow a party to ask interrogatories and
request production to the extent of Rule 26(b). Fed.R.Civ.P.
Rule of Civil Procedure 37 provides sanctions for failure to
cooperate in discovery. Rule 37(a) allows a party in certain
circumstances to move for an order compelling discovery from
another party. In particular, Rule 37(a)(3)(b)(iii)-(iv)
allows a party seeking discovery to move for an order
compelling an answer or production of documents where a party
“fails to answer an interrogatory” or
“fails to produce documents.” An “evasive
or incomplete” answer or production is treated the same
as a complete failure to answer or produce. Fed.R.Civ.P.
addition to alleging that the responding party has failed to
properly cooperate with discovery, a motion to compel under
Rule 37(a) must also “include a certification that the
movant has in good faith conferred or attempted to confer
with the person or party failing to make disclosure or
discovery in an effort to obtain it without court
action.” Fed.R.Civ.P. 31(a)(1).
if the motion is granted, the court “must, after giving
an opportunity to be heard, require the party or deponent
whose conduct necessitated the motion, the party or attorney
advising that conduct, or both to pay the movant's
reasonable expenses incurred in making the motion, including
attorney's fees.” Fed.R.Civ.P. 37(a)(5)(A).
However, the Court will not order payment if the opposing
party's nondisclosure was “substantially
justified” or circumstances make the award unjust.