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Kay v. Lamar Advertising of South Dakota

September 1, 2009

RICHARD W. KAY AND DEANA D. KAY, HUSBAND AND WIFE, PLAINTIFFS,
v.
LAMAR ADVERTISING OF SOUTH DAKOTA, INC., A SOUTH DAKOTA CORPORATION, AND CODY P. BURTON, DEFENDANTS/COUNTER-CLAIMANTS,
v.
RICHARD W. KAY, COUNTER-DEFENDANT.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

ORDER DENYING DEFENDANTS' OBJECTION TO ORDER GRANTING PLAINTIFFS' MOTION TO COMPEL RESPONSE TO REQUESTS FOR ADMISSION

Defendants, Lamar Advertising of South Dakota and Cody Burton, object to Magistrate Judge Duffy's order granting plaintiffs' motion to compel response to requests for admission. Plaintiffs oppose the motion. Defendants' objections are denied.

The background does not need to be set out because Magistrate Judge Duffy's order fully and accurately describes the relevant factual and procedural background. See Order Granting Plaintiffs' Motion to Compel, Docket 78, at 1-3. The court will first address plaintiffs' motion to strike defendants' objections on the basis of untimeliness. Then the court will review the merits of defendants' objection pursuant to the standard set out in 28 U.S.C. § 636(b)(1)(A).

DISCUSSION

I. Plaintiffs' Motion to Strike

Defendants' Objections on the Basis of Untimeliness Plaintiffs argue that defendants' objections were filed after the ten-day deadline set out in the magistrate's order. The order states that "[t]he parties have ten (10) days after service of this order to file written objections pursuant to 28 U.S.C. § 636(b)(1), unless an extension of time for good cause is obtained." The order was filed on December 12, 2008, and defendants filed their objections on December 30, 2008.

Rule 6(a) of the Federal Rules of Civil Procedure sets out the procedure for computing time. When computing time, "the day of the act, event, or default that begins the period" is to be excluded. Fed. R. Civ. P. 6(a)(1). "[I]ntermediate Saturdays, Sundays, and legal holidays when the period is less than 11 days" are to be excluded as well. Fed. R. Civ. P. 6(a)(2). A "legal holiday" includes Christmas Day and "any other day declared a holiday by the President, Congress, or the state where the district court is located." Fed. R. Civ. P. 6(a)(4). And three days are added for service after the time period would otherwise expire. Fed. R. Civ. P. 6(d).

Under Rule 6(a)(1), the day the court order was filed, December 12, is excluded. December 12, 2008, fell on a Friday. Thus, the start date for the ten-day period was Monday, December 15. Christmas Day fell on a Thursday, and December 26, 2008, was declared a holiday by the President. Thus, ten days from December 15, excluding weekends and December 25 and 26, is December 30. Furthermore, defendants would also be entitled to three additional days for service. Defendants filed their objections on December 30, 2008. This is within the ten-day period. Plaintiffs' motion to strike on the basis of timeliness is therefore denied.

II. Defendants' Objections to Magistrate Judge Duffy's Order Granting Plaintiffs' Motion to Compel

Defendants argue that Magistrate Judge Duffy inappropriately relied on incorrect facts and evidence and failed to consider additional facts in arriving at her conclusion. The court's order was based on defendants' failure to comply with Rule 36(a)(4),*fn1 and its reasoning is summed up succinctly where the order stated,

Rule 36(a)(4) requires the responding party, before it gives the answer "I don't know," to state that it has made reasonable inquiry to attempt to find out the answer to the request to admit and that it still cannot admit or deny the question after having sought information readily available to it. Defendants have not complied with this directive from Rule 36(a)(4).

See Order Granting Plaintiffs' Motion to Compel, Docket 78, at 12. The order then "direct[ed] the defendants to make a reasonable effort to consult information readily available to them which would enable defendants to either admit or deny the Kays' requests." Id. at 14.

If, after making such inquiry, defendants still cannot admit or deny a request, then defendants must: (1) describe with particularity what steps they took to attempt to obtain the information which would enable them to admit or deny, (2) describe what information they obtained after taking these reasonable steps, and (3) state why the information readily available to defendants did not enlighten them such that they could either admit or deny the requests.

Id. at 14-15. Then, "[i]f defendants are able to in good faith admit part of a request, they must do so and then explain why they are unable to admit ...


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