United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE.
plaintiff John Gruber is proceeding on claims that defendants
City of Portage, Shawn Murphy, Kenneth Manthey and Klaude
Thompson violated his constitutional rights by ticketing and
searching cars parked on or near plaintiff's business and
conducting unnecessary searches of the property. Now before
the court are two motions to compel filed by defendants, as
well as a motion to expedite a hearing on the motions to
compel. Dkts. ##109, 124, 127. For the reasons below, I am
granting the motions to compel, but denying the requests for
an in-person hearing and for payment of defendants'
attorneys' fees and costs.
served discovery requests on plaintiff on October 31, 2017.
On November 20, 2017, plaintiff filed a motion with the court
to extend his time to respond, but Magistrate Judge Crocker
denied that motion because plaintiff had failed to confer
with defendants before filing his motion, defendants had
offered to extend plaintiff's response deadline to
January 9, 2018 and plaintiff had not provided any reason why
he could not submit discovery responses by January 9. Dkt.
#108. However, plaintiff did not submit his discovery
responses by January 9, prompting defendants to file a motion
to compel on January 10. Plaintiff filed an opposition brief
on January 25, dkt. #121, stating that by January 16, he had
responded to all of defendants' discovery requests. He
also filed his discovery responses with the court. Dkt.
##118, 119. Defendants were not satisfied with
plaintiff's responses, however, and filed a second motion
to compel on February 9, 2018. Dkt. #124. On February 12,
defendants also filed a motion for an expedited in-person
hearing on their motions to compel. Dkt. #127. Defendants
concede in their second motion to compel that they did not
confer with plaintiff about his responses before filing their
motion, but argue that they are excused from doing so under
the Pretrial Conference Order, dkt. #98 at 7, because doing
so would have been “a waste of time.” Dkt. #124
at 2. After reviewing plaintiff's discovery responses, I
agree with defendants that several of plaintiff's
responses to defendants' interrogatory and document
requests are inadequate or incomplete. In particular,
plaintiff must supplement his responses as follows:
1. Requests to which plaintiff responded
“already answered.” Plaintiff must
clarify where within his responses he “already
answered” the requests.
2. Requests to which plaintiff responded with the
phrases “City of Portage Documents, ”
“Portage Police Records, ” “public records,
” “news articles” or any similar general
statement. If plaintiff has copies of the relevant
documents in his possession, custody or control, he must
either produce copies of the documents or permit defendants
to inspect them. If he does not have possession, custody or
control of the documents, he should provide more specific
information about the documents so that defendants can
determine the particular documents to which plaintiff is
referring. Finally, if plaintiff is not aware of any document
in particular, he should say so.
3. Document requests to which plaintiff responded
that the responsive documents are in storage and
inaccessible.Plaintiff must provide these documents
to defendants if they are in storage that is within
plaintiff's custody or control or explain why they are
not in his custody or control.
4. Document requests to which plaintiff responded
that defendants should seek discovery from the “FAL
Group” directly. If plaintiff has these
documents, he must provide them to defendants.
5. Document requests to which plaintiff responded
that he submitted them to another court already. It
is irrelevant for this case that plaintiff may have submitted
documents in another lawsuit. If plaintiff has access to
documents relevant to defendants' discovery requests, he
must provide them.
6. Requests for clarification about the allegations
in plaintiff's complaint to which plaintiff failed to
respond. Plaintiff must make a good faith effort to
explain to defendants what he means by the terms and phrases
used in his complaint.
may have two weeks to supplement his discovery responses as
set forth above. He should also review all of his previous
responses and insure that he provided complete and accurate
information to defendants and supplement his responses
accordingly. To the extent that plaintiff does not recall the
information requested or does not have the responsive
documents in his possession, custody or control, he should
clearly state so under oath. However, plaintiff is warned
that if he states that he does not recall or does not have
the necessary documents, he will be stuck with those
responses in attempting to prove his claims at summary
judgment or trial and will not be allowed to expand upon his
answers. Although responding to defendants' requests may
seem difficult and time-consuming, Plaintiff is the party who
initiated this lawsuit and therefore has the obligation to
abide by the Federal Rules of Civil Procedure and respond to
all discovery requests that are properly made. The fact that
plaintiff is proceeding pro se does not mean that he does not
have the duty to engage in good faith discovery or that he
can ignore discovery requests without consequence.
Fischer v. Cingular Wireless, LLC, 446 F.3d 663,
664-66 (7th Cir. 2006) (explaining that pro se
plaintiff's disregard for discovery deadlines and refusal
to schedule deposition justified dismissal of case).
being said, I am not persuaded that a hearing is necessary or
that plaintiff should be made to pay defendants' attorney
fees and costs in bringing these motions at this time.
Although plaintiff's discovery responses were incomplete
and a few days late, he did make an effort to respond to
defendants' extensive discovery requests. Moreover,
defendants should have at least attempted to communicate
directly with plaintiff about his responses before filing a
motion to compel. Although defendants believe doing so would
have been a “waste of time” in light of previous
failed attempts to communicate with plaintiff about other
matters, defendants had never before attempted to explain
discovery deficiencies to plaintiff. If they had done so,
plaintiff may have offered to supplement his responses
without court intervention.
is cautioned that if he does not provide adequate responses
to defendants in two weeks, or provide to the court a good
reason why he cannot do so, it is likely that I will award
costs and fees to defendants in connection with any future
discovery motions they file. Further, if plaintiff fails to
comply with this order, he will face the ...