United States District Court, D. South Dakota, Southern Division
UNITED STATES OF AMERICA, FOR THE USE AND BENEFIT OF ASH EQUIPMENT CO., INC. D/B/A AMERICAN HYDRO; AND ASH EQUIPMENT CO., INC., A MARYLAND CORPORATION; Plaintiffs,
MORRIS, INC., A SOUTH DAKOTA CORPORATION; UNITED FIRE AND CASUALTY COMPANY, AN IOWA CORPORATION; AND RED WILK CONSTRUCTION, INC., A SOUTH DAKOTA CORPORATION; Defendants.
ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL
MORRIS, INC. DOCKET NO. 95
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE
a Miller Act action (40 U.S.C. § 3133(b)(3)(B)), brought
by the United States of America for the use and benefit of
Ash Equipment Company, Inc., doing business as American Hydro
(“Hydro”). Defendants are Morris, Inc.
(“Morris), United Fire and Casualty Company
(“UF&CC), and Red Wilk Construction, Inc. (Red Wilk).
Pending before the court is a motion filed by Hydro to compel
Morris to provide certain discovery. See Docket No.
95. The presiding district judge, the Honorable Lawrence L.
Piersol, referred this motion to this magistrate judge for a
decision. See Docket No. 98.
Morris contracted with the United States Army Corps of
Engineers (“the Corps”) to do work on the Fort
Randall Dam spillway at Pickstown, South Dakota. Morris
obtained a Miller Act payment bond on the project from
defendant UF&CC in the amount of $7, 472, 670.25. The payment
bond obligated Morris and UF&CC jointly and severally to
guarantee payment to any subcontractor of Morris' who
furnished labor and materials on the project as well as to
persons who had a direct contractual relationship with Morris
on the project.
the project required concrete removal using hydrodemolition
methods as required by the Corps in its project plans and
specifications. Morris subcontracted this work to Red Wilk,
who in turn subcontracted with Hydro. Red Wilk promised to
pay Hydro for Hydro's work on the project within 10
working days after Morris paid Red Wilk on monthly progress
payments. Hydro brought suit after Red Wilk allegedly failed
to pay for certain claims made by Hydro for completed work on
the project. Hydro gave notice to Morris that it had not been
paid. Hydro's first notice to Morris claims amounts
unpaid of $520, 135.00; its supplemental notice claimed
unpaid amounts of $1, 168, 018.49. In its complaint, Hydro
asserts a breach of contract claim against Red Wilk, an
equitable claim in quantum meruit against Morris,
and claim against the UF&CC bond.
responded to this lawsuit by filing a crossclaim for
indemnity against Red Wilk, asserting that Red Wilk must
indemnify Morris for any monies Morris must pay to Hydro. Red
Wilk asserted a compulsory counterclaim against Hydro,
asserting that the prime contract was part and parcel of the
contract between Red Wilk and Hydro. Red Wilk further
asserted that Hydro did defective and/or incomplete work
pursuant to its contract with Red Wilk.
to Fed.R.Civ.P. 36, Hydro served Morris with requests for
admission on April 30, 2016. See Docket No. 95. On
June 3, 2016, Morris objected to those requests as allegedly
untimely under the district court's scheduling order.
See Docket No. 105 at p. 6. The instant motion was
filed, which Morris resists. See Docket No. 105.
Meet and Confer Requirement
a party may make a motion to compel another party to make
discovery or disclosure, the movant must certify that they
have in good faith conferred or attempted to confer with the
opposing party from whom the discovery or disclosure is
sought in an attempt to resolve the disagreement without
court intervention. See Fed.R.Civ.P. 37(a)(1). Hydro
alleges that it has complied with this requirement. Morris
does not dispute this precondition. The court, then, turns to
Hydro's Motion to Compel
time Hydro served Morris with its requests to admit, the
district court had established May 31, 2016, as the deadline
for discovery. See Docket No. 59. The court's
order directed that “all fact discovery shall be
commenced in time to be completed by May 31, 2016.”
Id. at p. 2, ¶ 3. Subsequently, on July 11,
2016, the district court-at the parties'
stipulation-extended the deadline to finish expert discovery
to September 15, 2016. See Docket No. 99. In their
stipulation, the parties also agreed that certain regular
discovery could take place outside the May 31, 2016,
discovery. See Docket No. 92. This court also
extended the discovery deadline to September 2, 2016, in
connection with an order granting a motion to compel as to
certain matters. See Docket No. 107. Trial in this
matter is not scheduled to commence until July 25, 2017,
nearly one year from now. See Docket No. 99.
discovery requests consist of 42 discrete requests to admit.
See Docket No. 97-1. Twelve of these requests are
simply of an evidentiary foundational nature: they request
Morris to admit that each exhibit labeled A through L,
inclusive, is an authentic and genuine copy of the document
it purports to be. Id. The other ...