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United States v. Morris, Inc.

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

September 6, 2016

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,
v.
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

         INTRODUCTION

         This is 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.

         FACTS

         Defendant 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.

         Part of 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.

         Morris 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.

         Pursuant 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.

         DISCUSSION

         A. Meet and Confer Requirement

         Before 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 the merits.

         B. Hydro's Motion to Compel

         At the 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.

         Hydro's 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 ...


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