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Gard v. Dooley
United States District Court, D. South Dakota, Southern Division
January 23, 2017
REX GARD, Plaintiff,
BOB DOOLEY, CHIEF WARDEN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; SUSAN JACOBS, ASSOCIATE WARDEN, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; MURIEL NAMINGA, LAUNDRY SUPERVISOR, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; ANDRA GATES, SUPERVISOR, DOH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; KELLY SWANSON, SUPERVISOR, DOH, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; JENIFER BEMBOOM, CBM FOOD SERVICE, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; JOHN TREWIELLAR, CBM FOOD SERVICE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; BARRY SCHROETER, CBM FOOD SERVICE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JENIFER STANWICK, DEPUTY WARDEN, INDIVIDUAL AND OFFICIAL CAPACITY; REBECCA SCHEIFFER, ASSOCIATE WARDEN, INDIVIDUAL AND OFFICIAL CAPACITY; LELAND TJEERDSMA, MAJOR, INDIVIDUAL AND OFFICIAL CAPACITY; TRAVIS TJEERDSMA, UNIT STAFF, INDIVIDUAL AND OFFICIAL CAPACITY; TAMMY DEJONG, UNIT STAFF, INDIVIDUAL AND OFFICIAL CAPACITY; RANDY STEVENS, PROPERTY OFFICER, INDIVIDUAL AND OFFICIAL CAPACITY; CORPORAL CROPPER, CORPORAL, INDIVIDUAL AND OFFICIAL CAPACITY; RANDY MILNE, CORRECTIONS OFFICER, INDIVIDUAL AND OFFICIAL CAPACITY; JESSICA LUKE, OFFICE STAFF, DOH, INDIVIDUAL AND OFFICIAL CAPACITY; DOC STAFF, UNKNOWN AT THIS TIME, INDIVIDUAL AND OFFICIAL CAPACITY; AND CBM FOOD SERVICES EMPLOYEES, UNKNOWN AT THIS TIME, INDIVIDUAL AND OFFICIAL CAPACITY; Defendants.
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL
[DOCKET NO. 167]
VERONICA L. DUFFY, United States Magistrate Judge
matter is before the court on plaintiff Rex Gard's
pro se complaint alleging a claim under the
Americans With Disabilities Act (ADA). See
Docket Nos. 1, 149. Now pending is a motion to compel
discovery filed by Mr. Gard. See Docket No. 167.
Because that motion did not contain all information necessary
for this court to evaluate the motion, the court ordered Mr.
Gard to supplement his motion in two ways. First, the court
ordered that Mr. Gard provide the court with a copy of his
discovery requests which were at issue in the motion.
See Docket No. 168. Second, the court ordered that
Mr. Gard provide the court with copies of all correspondence
exchanged between himself and defendants regarding good faith
efforts to resolve the discovery dispute. Id.
Gard complied with the first part of the court's order,
filing a copy of his request for the production of documents.
See Docket No. 170-1. However, Mr. Gard has not
complied with the second part of the court's
order-supplying the court with copies of the correspondence
exchanged between himself and counsel for defendants
regarding good faith efforts to resolve the discovery
Rule of Civil Procedure 37 provides in pertinent part as
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). Similarly, this
court's local rules provide as follows:
A party filing a motion concerning a discovery dispute must
file a separate certification describing the good faith
efforts of the parties to resolve the dispute.
See DSD LR 37.1.
Gard never filed a separate certification of his good faith
efforts to resolve this matter without resort to a court
motion. As mentioned previously, he also failed to provide
the court with copies of the letters exchanged between
himself and defense counsel on this topic. Mr. Gard does
describe the content of his letter in his motion. He states
he mailed his discovery requests to defendants on October 26,
2016. After not receiving a response within the normal 30-day
period, Mr. Gard sent defendants a letter on November 29,
2016, requesting the discovery. Defendants sent Mr. Gard a
responsive letter asking for additional time to respond.
also describe the exchange between themselves and Mr. Gard.
They acknowledge receiving his discovery requests and the
follow-up letter from Mr. Gard. On November 29, 2016, defense
counsel wrote to Mr. Gard explaining that officials at Mike
Durfee State Prison were assisting defense counsel in
responding to the discovery requests but that, given the
number and scope of Mr. Gard's requests, additional time
would be needed to gather and copy the documents. Defense
counsel requested an extension of time to respond to Mr.
Gard's discovery requests. Mr. Gard ignored this request
and instead filed the instant motion to compel. Defendants
explain the extension was requested both because of the
number and scope of Mr. Gard's requests, but also because
an attorney who was helping defense counsel on the project
went on maternity leave on December 12, 2016, and an
unexpected death in defense counsel's family required his
absence from the office for a week. See Docket No.
169 at p. 2.
Gard now has defendants' response to his discovery
requests. Defendants mailed those responses to Mr. Gard on
January 3, 2017, before Mr. Gard's motion was filed
herein (which was January 4, 2017), and before this court
issued its order for supplementation (filed January 5, 2017).
After receiving defendants' responses, Mr. Gard filed a
reply brief on his motion, now asserting substantive grounds
for his motion to compel, alleging defendants' responses
Gard's motion must be denied for two reasons. First, he
has not demonstrated a good faith effort to resolve the
discovery dispute before filing his motion. The court was
willing to overlook the absence of a separate certification
of good faith in Mr. Gard's original filing-that is why
the court issued its order requiring Mr. Gard to supplement
the record with the letters exchanged between himself and
defense counsel. However, Mr. Gard ignored that portion of
the court's ruling. In addition, Mr. Gard's
representations- paralleled by defendants'
representations as to the exchange-falls short of what is
required. Rule 37 requires more than simply sending a letter
demanding answers, as Mr. Gard did on November 29, 2016.
Instead, it requires hearing out the opposing party's
positions and requests and attempting to negotiate a
compromise. When defense counsel requested an extension of
the deadline, Mr. Gard simply ignored that request and filed
his motion, albeit 30 days later. This is not what Rule 37
contemplates. Robinson v. Potter, 453 F.3d 990, 995
(8th Cir. 2006); Black Hills Molding, Inc. v. Brandom
Holdings, LLC, 295 F.R.D. 403, 409-10 (D.S.D. 2013).
the court denies Mr. Gard's request on substantive
grounds. Although he alleges defendants' responses to his
requests for production are deficient, Mr. Gard never
provided the court with defendants' responses. The court
is, therefore, unable to ascertain (1) what defendants'
responses were and (2) whether Mr. Gard's claim that the
responses are deficient is supported by the facts. Since this
new matter was presented in Mr. Gard's reply brief, the
court does not have the defendants' response to his
allegations. Mr. Gard is aware of the rule against
introducing new matters in a reply brief as he recently took
defendants to task for allegedly doing that very thing in
another of his many civil cases. See Gard v. Dooley,
Civ. No. 14-4182, Docket No. 67 (D.S.D. Oct. 14, 2016)
(asking the court to strike defendants' reply to
defendants' motion for summary judgment because it
contained new facts and argument). Accordingly, it is hereby
ORDERED that plaintiff Rex Gard's motion to compel and
for sanctions [Docket No. 167] is denied.