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Heil v. Belle Starr Saloon & Casino, Inc.

United States District Court, D. South Dakota, Western Division

February 25, 2014

MISTY N. HEIL, Plaintiff,
v.
BELLE STARR SALOON & CASINO, INC.; ANGIE'S INC.; Defendants, and THOMAS W. SHERWOOD, SR., d/b/a Sherwood Investments & Trust Company, and SHERWOOD FAMILY LIMITED PARTNERSHIP, Defendants/Third-Party Plaintiffs,
v.
JASON ORELUP, Third-Party Defendant. CHELSEA LINTON, Plaintiff,
v.
ANGIE'S INC.; BELLE STARR SALOON & CASINO, INC.; Defendants, and THOMAS W. SHERWOOD SR., d/b/a Sherwood Investments and Trust Company, and SHERWOOD FAMILY LIMITED PARTNERSHIP, Defendants/Cross Claim Plaintiffs,
v.
JASON ORELUP, Defendant/Cross Claim Defendant.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF HEIL'S MOTION TO COMPEL

JEFFREY L. VIKEN, Chief District Judge.

Pending before the court is plaintiff Misty Heil's motion to compel answers to her third set of interrogatories to defendants Sherwood Family Limited Partnership and Thomas W. Sherwood, Sr., d/b/a Sherwood Investments and Trust Company.[1] (Docket 176). Ms. Heil seeks answers to interrogatories and the production of documents "consistent with information available to Tom Sherwood, Sr. and his employees[.]". Id. at p. 2. Defendants resist Ms. Heil's motion. (Docket 181).

Ms. Heil complied with Fed.R.Civ.P. 37(a)(1) and D.S.D. Civ. LR 37.1 by attempting, in good faith, to resolve her differences with defendants before bringing the second motion to compel before the court. (Docket 176 at p. 2). Each of Ms. Heil's interrogatories and requests for production will be addressed separately.

INTERROGATORY NO. 1: List each and every entity owned in-part or in-whole by Thomas Sherwood, Jr., indicating each entity's owners, shareholders, directors, officers, employees, agents, and independent contractors from January 1, 2008 to the present.

(Docket 177 at p. 7). Defendants response was:

The SITC Defendants object to this interrogatory on the [sic] it seeks information concerning Thomas Sherwood Jr., who is not a named defendant in these actions. The SITC Defendants cannot answer an interrogatory on behalf of another person or entity. The SITC Defendants further object to this interrogatory as it seeks information which is not relevant and not designed to lead to the discovery of admissible evidence. The SITC Defendants further object to this interrogatory on the grounds that it is overbroad and unduly burdensome as to the time period requested and seeks information that is not in the custody or control of the SITC Defendants.

Id.

"Rule 26(b) of the Federal Rules of Civil Procedure is widely recognized as a discovery rule which is liberal in scope and interpretation, extending to those matters which are relevant and reasonably calculated to lead to the discovery of admissible evidence." Hofer v. Mack Trucks, Inc. , 981 F.2d 377, 380 (8th Cir. 1992). "While the standard of relevance in the context of discovery is broader than in the context of admissibility (Rule 26(b)) clearly states that inadmissibility is no grounds for objection to discovery...." Id . (referencing Oppenheimer Fund, Inc. v. Sanders , 437 U.S. 340, 350-51 (1978)). A party seeking discovery is merely required to make a threshold showing of relevance, which is more relaxed than the showing required for relevance in the context of admissibility. Id. at 351. The party resisting production of discovery bears the burden of establishing lack of relevancy or that complying with the request would be unduly burdensome. See St. Paul Reinsurance Co. v. Commercial Financial Corp. , 198 F.R.D. 508, 511 (N.D. Iowa 2000). "[T]he mere statement... that [an] interrogatory [or request for production] was overly broad, burdensome, oppressive [or] irrelevant' is not adequate to voice a successful objection." Id . (internal citation omitted). "[T]he party resisting discovery must show specifically how... each interrogatory [or request for production] is not relevant or how each question is overly broad, burdensome, or oppressive." Id. at 512 (internal citation omitted). "Because the interrogatories themselves are relevant, the fact that answers to them will be burdensome and expensive is not in itself a reason for refusing to order discovery which is otherwise appropriate." In re Folding Carton Antitrust Litigation , 83 F.R.D. 260, 265 (N.D. Ill. 1979) (internal citation omitted). "[T]he fact that answering the interrogatories will require the objecting party to expend considerable time, effort and expense consulting, reviewing and analyzing huge volumes of documents and information is an insufficient basis to object." Burns v. Imagine Films Entertainment, Inc. , 164 F.R.D. 589, 593 (W.D.N.Y. 1996) (internal citation omitted).

Defendants argue Ms. Heil took Mr. Sherwood, Jr.'s, deposition in 2011 and could have asked him these same questions at that time. (Docket 181). However, both Ms. Heil's and Ms. Linton's second amended complaints including Mr. Sherwood, Sr., and SFLP as additional defendants were not filed until mid-2012. (Dockets 121 & 122).

While it is generally true a father cannot answer an interrogatory on behalf of his son, Mr. Sherwood, Sr., can certainly answer interrogatory no. 1 to the extent of his personal knowledge as to his son's involvement in the business entities in which Mr. Sherwood, Sr., is also a participant. The information is relevant as Mr. Sherwood, Jr., is identified as a business associate with his father in a number of prior filings and rulings in this consolidated case. (Dockets 1, 35, 96-15, 104-11, 111, 112, 154, & 155).

Defendants' answer to the interrogatory also specifically limits their response to the SITC defendants. (Docket 181 at p. 6). Defendants will fully answer the question, identify all entities of Mr. Sherwood, Sr., in which Mr. Sherwood, Jr., is a part-owner, and then respond to the remainder of the interrogatory.

Defendants have not met their "burden under [Rule 33(b)(4)] of making a specific showing of reasons why the interrogatories [and requests for documents] should not be answered or documents not produced where [it] merely made conclusory objections." Burns , 164 F.R.D. at 593. To the extent the same objections are made in subsequent interrogatories and requests for production of documents, defendants' objections on these grounds are overruled.

Mr. Sherwood, Sr., shall answer interrogatory no. 1.

INTERROGATORY NO. 2: List each and every entity owned in-part or in-whole by Thomas Sherwood, Sr., indicating each entity's owners, shareholders, directors, officers, employees, agents, and independent contractors from January 1, 2008 to the present.

(Docket 177 at p. 8). Defendants' response was:

The SITC Defendants object to this interrogatory as overbroad, unduly burdensome and seeking information that is not designed to lead to the discovery of admissible evidence. Subject to and without waiving those objections, the SITC Defendants respond as follows.

Id. at pp. 8-9 (listing 29 entities).

Ms. Heil seeks this information to prove "the existence of a single integrated enterprise amongst the Sherwood owned companies." Id. at p. 6. "The legal standard... for determining a parent corporation's liability for a subsidiary's commission of practices prohibited by Title VII.... [is] a four-part test treating related but distinct entities as an integrated enterprise based on 1) interrelation of operations, 2) common management, 3) centralized control of labor relations, and 4) common ownership or financial control." Sandoval v. American Building Maintenance Industries, Inc. , 578 F.3d 787, 793 (8th Cir. 2009) (citing Baker v. Stuart Broad. Co. , 560 F.2d 389, 391 (8th Cir.1977)). The court's "reliance upon, and the continued viability of, Baker's four-part test is supported by EEOC guidance and Congressional intent." Id . "Under the EEOC's interpretation of Title VII, [t]he separate entities that form an integrated enterprise are treated as a single employer for purposes of both coverage and liability, ' and relief can be obtained from any of the entities that form part of the integrated enterprise.'" Id . (citing EEOC Compliance Manual, Section 2: Threshold Issues, No. 915.003, at 44).

Defendants object to this interrogatory claiming "Tom Jr. does not have an ownership interest in any of these entities, other than that as a limited partner of SFP...." (Docket 181) (emphasis in original). This interrogatory specifically focuses on the ownership of Mr. Sherwood, Sr., not his son. Defendants effort to deflect focus away from Mr. Sherwood, Sr., is disingenuous.

The information requested by Ms. Heil is "relevant and reasonably calculated to lead to the discovery of admissible evidence." Hofer , 981 F.2d at 380. Defendants' objections are overruled. Mr. Sherwood, Sr., shall provide all the information requested by interrogatory no. 2 for all 29 entities identified.

INTERROGATORY NO. 3: List which individuals, whether owners, shareholders, officers, directors, employees, or agents of any Defendant or any Thomas Sherwood, Sr. or Thomas Sherwood, Jr. owned or personally owned entity, that received actual notice of Misty Heil's claim, made to the Department of Labor or filed with the United States District Court.

(Docket 177 at p. 9). Defendants' response was:

The SITC Defendants object to this interrogatory to the extent that it seeks information concerning Thomas Sherwood, Jr., who is not a named defendant in these actions. The SITC Defendants cannot answer an interrogatory on behalf of another person or entity. The SITC Defendants further object to this interrogatory as the term "actual notice" is vague and subject to differing interpretations. Subject to and without waiving these objections and the objections to definitions, no owner, shareholder, officer, director, employee, or agent of the SITC Defendants received formal notice of Misty Heil's claim prior to the SITC Defendants being served in this lawsuit.

Id. at pp. 9-10 (emphasis in original).

Defendants' assertion the phrase "actual notice" is vague ignores the context in which the phrase is used in this litigation. In the order granting plaintiff's motion to join and amend complaint, Magistrate Judge Veronica L. Duffy specifically focused on the issue of notice. (Docket 115). SITC asserted Ms. Heil should not be allowed to file a second amended complaint adding Mr. Sherwood, Sr., and SITC because plaintiff's "claim would be time-barred by the applicable statute of limitations." Id. at 30. "[T]he issue to be determined is whether the claims against Sherwood Family relate back' to the original date of the complaint, which was filed September 15, 2009." Id. at p. 31. The amendment to Ms. Heil's complaint would relate back to the filing of her original complaint "if... the party to be brought in by amendment... received such notice of the action that it will not be prejudiced in defending on the merits...." Id . (citing Fed.R.Civ.P. 15(c)(1)(C)(i)). "The rationale of Rule 15(c) is that a party who has been notified of litigation concerning a particular occurrence has been given all the notice that statutes of limitations were intended to provide." Id . (referencing Plubell v. Merck & Co., Inc. , 434 F.3d 1070, 1072 (8th Cir. 2006)).

"Sherwood Family does not address whether it had actual or constructive notice of Ms. Heil's complaint." Id. at p. 32. "The question of whether Ms. Heil's claims against newly-added defendants will relate back to the date of her original institution of this lawsuit hinges on whether those defendants had notice of the lawsuit, actual or constructive.... The court will allow the amendment and any discovery related to the statute of limitations issue." Id. at p. 33.

"Actual notice" is defined as "[n]otice given directly to, or received personally by, a party." Black's Law Dictionary, 1164 (9th ed. 2009). Defendant's objection that Ms. Heil's "request is vague in terms of what she means by actual notice.'..." borders on bad faith, a close cousin of contemptuous conduct. (Docket 181 at p. 7). Defendants well know Ms. Heil is seeking information from Mr. Sherwood, Sr., so as to ensure her second amended complaint survives defendants' statute of limitation claim by coming within the relation back provisions of Rule 15(c)(1)(C).

Ms. Heil's interrogatory is clear and requires Mr. Sherwood, Sr., to identify to the best of his personal knowledge when he, his son, and the owners, shareholders, officers, directors, employees, or agents of any Thomas Sherwood, Sr., owned or partially owned entity received actual notice of Misty Heil's claim as made to the Department of Labor or filed with the United States District Court. Mr. Sherwood, Sr.'s, answer was nonresponsive and evasive. Defendants' objections are overruled. Interrogatory no. 3 must be answered.

INTERROGATORY NO. 4: For each individual listed in Interrogatory No. 3, list each individual's position and the entity, or entities the individual is/was employed by, working for, and/or agent of, etc.

(Docket 177 at p. 10). Defendants' response was:

The SITC Defendants object to this interrogatory to the extent that it seeks information concerning Thomas Sherwood, Jr., who is not a named defendant in these actions. The SITC Defendants cannot answer an interrogatory on behalf of another person or entity. The SITC Defendants further object to this interrogatory as the term "etc." is vague and subject to differing interpretations. Subject to and without waiving these objections and the objections to definitions, see answer to number 2.

Id. (emphasis in original).

Plaintiff's use of the abbreviation "etc." is not of sufficient clarity to require the defendants to respond to the "etc." However, for all the reasons stated above, defendants' answer was nonresponsive and evasive. Defendants' objections are overruled. Interrogatory no. 4 must be answered.

INTERROGATORY NO. 5: List which individuals, whether owners, shareholders, officers, directors, employees, or agents of any Defendant or any Thomas Sherwood, Sr. or Thomas Sherwood, Jr. owned or personally owned entity, that received actual notice of Chelsea Linton's claim, made to the Department of Labor or filed with the United States District Court.

Id. Defendants' response was:

The SITC Defendants object to this interrogatory to the extent that it seeks information concerning Thomas Sherwood, Jr., who is not a named defendant in these actions. The SITC Defendants cannot answer an interrogatory on behalf of another person or entity. The SITC Defendants further object to this interrogatory as the term "actual notice" is vague and subject to differing interpretations. Subject to and without waiving these objections and the objections to definitions, no owner, shareholder, officer, director, employee or agent of the SITC Defendants received formal notice of Chelsea Linton's claim prior to the SITC Defendants being served in this lawsuit.

Id. (emphasis in original).

The court's analysis of interrogatory no. 3 is applicable to defendants' response to this interrogatory. Mr. Sherwood, Sr.'s, answer was nonresponsive and evasive. Defendants' objections are overruled. Interrogatory no. 5 must be answered.

INTERROGATORY NO. 6: For each individual listed in Interrogatory No. 5, list each individual's position and the entity, or entities the individual is/was employed by, working for, and/or agent of, etc.

Id. at pp. 10-11. The defendants' response was:

The SITC Defendants object to this interrogatory to the extent that it seeks information concerning Thomas Sherwood, Jr., who is not a named defendant in these actions. The SITC Defendants cannot answer an interrogatory on behalf of another person or entity. The SITC Defendants further object to this interrogatory as the term "etc." is vague and subject to differing interpretations. Subject to and without waiving these objections and the objections to definitions, see answer to number 2.

Id. at p. 11 (emphasis in original).

The court's analysis of interrogatory no. 4 is applicable to defendants' response to this interrogatory. Mr. Sherwood, Sr.'s, answer was nonresponsive and evasive. Defendants' objections are overruled. Interrogatory no. 6 must be answered.

INTERROGATORY NO. 7: List all individuals in any Pennsylvania office owned, operated, or managed by any Defendant or any entity owned or partially owned or managed by Thomas Sherwood, Sr. or Thomas Sherwood, Jr. who would have answered telephone calls on behalf of Thomas Sherwood, Sr., Thomas Sherwood, Jr., Thomas W. Sherwood, Sr. d/b/a Sherwood Investments and Trust Company, Sherwood Family Limited Partnership, "Sherwood Management" or "Sherwood Investments" as used and described in the memorandums and letters attached to Affidavit of Rebecca L. Mann as Documents 66-13, 66-14, 66-15 and 66-16 in District of South Dakota Case 5:09-cv-05099-JLV. Following each individual's name, indicate all entities that individual received phone calls or took messages for, or would forward messages to, for the time period of January 1, 2007 through the present.

Id. at p. 12. Defendants' response was:

The SITC Defendants object to this interrogatory to the extent that it seeks information concerning Thomas Sherwood, Jr., who is not a named defendant in these actions. The SITC Defendants cannot answer an interrogatory on behalf of another person or entity. The SITC Defendants further object to this interrogatory on the grounds that it is overbroad, unduly burdensome and seeks information which is not relevant and not designed to lead to the discovery of admissible evidence. The SITC Defendants further object to this interrogatory to the extent that it seeks information not in the possession, custody or control of the SITC Defendants. Subject to and without waiving these objections and the objections to definitions, the following individuals answered the telephone for the SITC Defendants:
Angie Sherwood Earl Whittle Maria Campbell
Each of these individuals answered the telephone for SITC, and ADI, which later was renamed Mr. DVD.

Id. at p. 13.

Plaintiff's interrogatory is proper to evaluate whether Mr. Sherwood, Sr.'s, companies or interests constitute an integrated enterprise. Sandoval , 578 F.3d at 793. Mr. Sherwood, Sr.'s, answer was only partially responsive. Defendants' objections are overruled. Interrogatory no. 7 must be fully answered.

INTERROGATORY NO. 8: List all businesses, entities, individuals, and others who received mail, faxes, e-mails, messages, and was registered to receive service of process for the following addresses from January 1, 2007 until the present:
(a) 600 N. 3rd Street, Philadelphia, Pennsylvania 19123;
(b) 649 West Glenwood Avenue, Philadelphia, Pennsylvania 19142;
(c) P.O. Box 16420, Philadelphia, Pennsylvania 19122;
(d) 1407 Main Street, #200, Longmont, Colorado 80501;
(e) 1420 S. Acoma Street, Denver, Colorado 80223; and
(f) 649 West Glenwood / 3500 N. Sixth, Philadelphia, Pennsylvania 19140.

(Docket 177 at p. 14). Defendants' response was:

The SITC Defendants object to this interrogatory to the extent that it seeks information other than as to the SITC Defendants. The SITC Defendants cannot answer an interrogatory on behalf of another person or entity. The SITC Defendants further object to this interrogatory as overbroad, unduly burdensome, seeking information which is not relevant and not designed to lead to the discovery of admissible evidence and seeking information not in the possession, custody or control of the SITC Defendants. Subject to and without waiving these ...

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