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Misty N. Heil v. Belle Starr Saloon & Casino

March 29, 2011


The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge




This matter is before the court on plaintiff Misty N. Heil's complaint alleging sexual harassment, creation of a hostile work environment, and retaliatory discharge and wrongful termination, in violation of Title VII (42 U.S.C. §§ 2000e et seq), and assault and battery and intentional infliction of emotional distress, in violation of South Dakota state law. On December 14, 2010, Ms. Heil moved the district court for an order (1) compelling the defendants' answers to her requests for discovery; (2) compelling disclosure of the last-known contact information for Mr. Terry Blood, former Regional Supervisor for the defendants; and (3) extending the discovery and motions deadlines by a period of three months from the date of the court's order. See Docket Nos. 20, 21. The district court, the Honorable Jeffrey L. Viken, referred the plaintiff's motion to compel and extend deadlines to this magistrate judge for resolution, pursuant to 28 U.S.C. § 636(b)(1)(A). See Docket No. 24.


On November 5, 2010, Ms. Heil served on the defendants, Belle Starr Saloon & Casino ("Belle Starr") and Angie's, Inc. ("Angie's"), her second set of interrogatories and requests for production ("RFPs"). SeeDocket No. 22, Affidavit of Brad J. Lee ("Aff. of B. Lee"), ¶ 1; Docket No. 22-1 ("11/05/10 letter to M. Wheeler with discovery requests"). The defendants' responses to these requests were due thirty days after service, on December 6, 2010. See Docket No. 13, District Court's Scheduling Order, ¶ 4; FED. R. CIV. P. 33(b)(2). The defendants did not supply responses to the discovery requests. On December 8, 2010, Heil's counsel telephoned defense counsel to inquire if and when the discovery would be forthcoming. See Docket Nos. 21, 22-2. On December 9, 2010, Heil's counsel sent a letter via e-mail to defense counsel, advising that Ms. Heil would be filing a motion to compel discovery. Docket No. 22-2. Five days later, on December 14, 2010, Ms. Heil filed the present motion to compel. Docket No. 21.

In response to Ms. Heil's motion, the defendants represented that Belle Starr and Angie's had both filed, or were in the process of filing, a petition for dissolution/liquidation in South Dakota state court, pursuant to S.D.C.L. § 47- 1A-1403.*fn1 See Docket No. 25. The defendants did not address any of the discovery requests which were the subject of the motion to compel, and did not address the effect, if any, that a pending petition for dissolution in state court has on the federal litigation. Id. Instead, the defendants merely represented that neither corporation had the financial ability to continue to defend the matter, and that any financial resources remaining after dissolution would be used to pay the defendants' creditors and claimants. Id.

Ms. Heil asserted in her reply brief that a pending petition for dissolution of a corporation has no effect on the present federal litigation. Docket No. 26 (quoting S.D.C.L. § 47-1A-1405.1(6)).*fn2 Ms. Heil further asserted that, under South Dakota state law, a "proceeding" for purposes of Title 47 (entitled "Corporations") "includes civil suit and criminal, administrative, and investigatory action." Id. at 1-2 (quoting S.D.C.L. § 47-1A-140(32)). Based on the applicable state statutes, and the defendants' failure to indicate any reasons why her motion should not be granted, Ms. Heil urges the court to grant her motion to compel and extend deadlines.


A. Plaintiff's Motion to Compel Discovery

1. Meet-and-Confer Requirement

A motion to compel answers to interrogatories or requests for the production of documents is governed by FED. R. CIV. P. 37. That rule provides, in pertinent part:

On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must 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.

See FED. R. CIV. P. 37(a)(1).

Likewise, the local rules in this district require a movant to attempt to informally resolve matters with the opposing party before filing a discovery motion:

No objection to interrogatories, or to requests for admissions, or to answers to either relating to discovery matters shall be heard unless it affirmatively appears that counsel have met, either in person or by telephone, and attempted to resolve their differences through an informal conference. Counsel for the moving party shall call for such conference before filing any motion relating to discovery matters. . ..

See D.S.D. LR 37.1.

In this case, Ms. Heil's counsel contacted defendants' counsel twice, once by phone, and once by e-mail, prior to filing the instant motion and attempted, unsuccessfully, to arrive at a mutually-agreeable solution. See Docket No. 22- 2. The second of these communications, on December 9, 2010, stated: "Please accept my phone call and this letter as my attempt to meet and confer with you pursuant to the local rules." Id. Ms. Heil waited another five days following that e-mail, and having received no response from the defendants, filed the present motion to compel. See Docket No. 20, dated December 14, 2010. Defendants have not addressed, and apparently take no issue with, Ms. Heil's representations regarding her attempts to contact defendants and resolve the discovery dispute. Accordingly, the court finds that Ms. Heil has satisfied the meet-and-confer prerequisite to filing the instant discovery motion. See FED. R. CIV. P. 37(a)(1); D.S.D LR 37.1.

2. Scope of Discovery

Under Rule 26 Federal Rule of Civil Procedure 26(b)(1) sets forth the standard governing the scope of discovery in civil cases:

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense--including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.

See Fed. R. Civ. P. 26(b)(1).

"Relevancy is to be broadly construed for discovery issues and is not limited to the precise issues set out in the pleadings. Relevancy . .. encompass[es] 'any matter that could bear on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.' "

E.E.O.C. v. Woodmen of the World Life Ins. Society, 2007 WL 1217919 at *1

(D.Neb. Mar. 15, 2007) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). The party seeking discovery must make a "threshold showing of relevance before production of information, which does not reasonably bear on the issues in the case, is required." Id. (citing Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1993)). "Mere speculation that information might be useful will not suffice; litigants seeking to compel discovery must describe with a reasonable degree of specificity, the information they hope to obtain and its importance to their case." Id. (citing Cervantes v. Time, Inc., 464 F.2d 986, 994 (8th Cir. 1972)).

The Federal Rules distinguish between discoverability and admissibility of evidence. Id. at 95; see also FED. R. CIV. P. 26(b), 32, and 33. Therefore, the rules of evidence assume the task of keeping out incompetent, unreliable, or prejudicial evidence at trial. These considerations are not inherent barriers to discovery. Discoverable information need not be admissible at trial; rather, "discovery of such material is permitted if reasonably calculated to lead to the discovery of admissible evidence." SeeFED. R. CIV. P. 26(b)(1) advisory committee's note.

Rule 26 requires the court to limit discovery if it determines, for example, that the discovery sought is unreasonably cumulative or duplicative or that "the burden or expense of the proposed discovery outweighs its likely benefit . . . ." See FED. R. CIV. P. 26(b)(2)(C); see alsoRoberts v. Shawnee Mission Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003); and Continental Illinois Nat'l Bank & Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 684-85 (D.Kan. 1991) ("All discovery requests are a burden on the party who must respond thereto. Unless the task of producing or answering is unusual, undue or extraordinary, the general rule requires the entity answering or producing the documents to bear that burden.").

3. Defendants Have Waived the Right to Object to Plaintiff's Discovery Requests

Under Rule 33(b)(4), if not timely asserted, objections to discovery requests are waived, unless the court finds good cause to excuse the failure to object. See, e.g., Janis v. Nelson, 2009 WL 5216898, at *8 (D.S.D. Dec. 30, 2009); Delaney v. Ashcraft, 2006 WL 2080023, at *1 (W.D. Ark. July 25, 2006).

Ms. Heil asserts that a pending petition for dissolution of a corporation has no effect on the present federal litigation. Docket. No. 26 (quoting S.D.C.L. § 47-1A-1405.1(6): "Dissolution of a corporation does not . . . [a]bate or suspend a proceeding pending by or against the corporation on the effective date of dissolution."). Ms. Heil asserts that, under South Dakota state law, a "proceeding" for purposes of Title 47 (entitled "Corporations") "includes civil suit and criminal, administrative, and investigatory action." Id. at 1-2 (quoting S.D.C.L. § 47-1A-140(32)).

Given that the applicable state statutes unambiguously state that a petition for dissolution does not abate or suspend civil litigation already pending against a corporation on the date the corporation is dissolved,*fn3 there is an absence of good cause appearing in the record to excuse the defendants' failure to timely object. Accordingly, to the extent the defendants had objections to Ms. Heil's discovery requests, the defendants have waived the right to object. FED. R. CIV. P. 33(b)(4). The court now turns to the specific discovery requests made by Ms. Heil.

4. Plaintiff's Discovery Requests

Ms. Heil's second set of interrogatories and RFPs requested responses to twelve interrogatories and three requests for production. See Docket No. 22-1. Specifically, Ms. Heil's interrogatories requested information responsive to the following:

1. The identity of every entity managed or supervised by Terry Blood during the years 2008-2010, and information relating thereto*fn4 ;

2. The identity of every gentlemen's club, strip club, or similar establishment owned in whole or in part by Thomas Sherwood, Thomas Sherwood, Jr., Sherwood Investment and Trust Company ("Sherwood Investment"), or any entity in which any of those individuals are involved, and information relating thereto;

3. All entities which Sherwood Investment owns or operates, in whole or in part, and ...

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