United States District Court, M.D. Pennsylvania
RICHARD CAPUTO UNITED STATES DISTRICT JUDGE
before the Court is Mr. Nuñez's motion to compel
Defendant Klopotoski to provide answers to outstanding
discovery. (ECF No. 91.) Plaintiff also seeks sanctions
pursuant to Federal Rule of Civil Procedure 37 due to defense
counsel's failure to adhere with this Court's
September 5, 2017 order lifting the stay of discovery and
directing Defendants to respond to Mr. Nuñez's
outstanding discovery requests within thirty days. Defendants
opposed the motion noting that prior to Mr. Nuñez
filing his motion to compel they were unaware of outstanding
discovery with respect to Defendant Klopotoski. In addition,
Defendants contend the grant of a motion to compel is
unnecessary, as Defendant Klopotoski would respond to Mr.
Nuñez's discovery by November 22, 2017. (ECF No.
98.) Mr. Nuñez counters that defense counsel should be
sanctioned for misleading the Court, as she was aware of
Defendant Klopotoski's obligation to respond to the
discovery when she sought to stay his responses in July 2016.
See ECF No. 52, p. 2 and ECF No. 104. The motion is now
ripe for disposition.
reasons that follow, the motion to compel and motion for
sanctions will be denied.
Standard of Review
Rule of Civil Procedure 26(b)(1) defines the scope of
discovery as “any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the
needs of the case.” This scope formally included
matters that were “reasonably calculated” to lead
to the discovery of relevant evidence, but Rule 26 as
amended, no longer includes this language. A matter is
relevant if “it has any tendency to make a fact more or
less probable than it would be without the evidence; and, the
fact is of consequence in determining the action.”
Fed.R.Evid. 401. The scope and conduct of discovery are
within the sound discretion of the trial court. In re
Cendant Corp. Sec. Litig., 343 F.3d 658, 661-62 (3d Cir.
2003); see also McConnell v. Canadian Pacific Realty
Co., 280 F.R.D. 188, 192 (M.D. Pa. 2011) (“Rulings
regarding the proper scope of discovery, and the extent to
which discovery may be compelled, are matters consigned to
the Court's discretion and judgment.”).
Rules of Civil Procedure 33 and 34 provide that a party upon
whom interrogatories and requests for production of documents
have been served shall serve a copy of the answers, and
objections, if any, to such discovery requests within thirty
days after the service of the requests. Fed.R.Civ.P. 33(b)(2)
and 34(b)(2)(A). A shorter or longer time may be directed by
court order or by stipulation of the parties. (Id.;
see also Fed. R. Civ. P. 29.)
of the Federal Rules of Civil Procedure governs motions to
compel discovery. Under Rule 37(a), a party may file a motion
to compel discovery when the opposing party fails to respond
or provides incomplete or evasive answers to properly
propounded document request or interrogatories. See
Fed. R. Civ. P. 37(a)(3)(B)(iii -iv). Pursuant to
Fed.R.Civ.P. 37(a)(5)(A), if a motion to compel is granted,
“the court must, after giving an opportunity to be
heard, require the party or deponent whose conduct
necessitated the motion, the party or deponent whose conduct
necessitated the motion, the party or attorney advising that
conduct, or both to pay the movant's reasonable expenses
incurred in making the motion, including attorney's
Relevant Procedural History
Nuñez commenced this action on April 15, 2014. (ECF
No. 1.) Defendants filed a timely motion to dismiss. (ECF No.
11.) Prior to filing a response to Defendants' motion,
Mr. Nuñez served interrogatories on Defendants
Britton, Hazlett and Wertz. (ECF No. 16.) Defendants'
motion to stay their obligation to respond to this discovery
pending the resolution of their motion to dismiss was granted
on September 30, 2014. (ECF No. 21.) On October 8, 2014,
Defendants filed a second motion to stay discovery with
respect to interrogatories served on Defendants Fisher and
Eichenlaub pending disposition of their motion to dismiss.
(ECF No. 23.) The Court granted Defendants' motion on
October 28, 2014. (ECF No. 27.) Defendants were to respond to
Plaintiff's discovery within thirty days of the
resolution of Defendants' motion to dismiss.
the Court granted Defendants' motion to dismiss
concerning claims against Wertz, Hazlet, Myers, the Bureau of
Treatment Services of Religious Accommodations, Brittan,
Eichenlaub, and Fisher, Mr. Nuñez was granted leave to
file an amended complaint. (ECF No. 34.) On May 18, 2016, Mr.
Nuñez filed his Amended Complaint. On July 8, 2016,
Mr. Nuñez served a “Request of Admissions
Directed to Michael Klopotoski”. (ECF No. 52.) On July
21, 2016, Defendants filed a motion to dismiss the amended
Complaint. (ECF No. 47.) Defendants subsequently sought a
third stay of discovery until their motion to dismiss was
resolved. (ECF No. 51.) Prior to the Court addressing
Defendants' third motion to stay discovery, Mr.
Nuñez filed motions to compel Defendant Klopotoski to
respond to his properly served request for admissions
“and interrogatories” and answers to
interrogatories and document requests served on Defendants
Wertz, Hazlett, Fisher, Britton and Eichenlaub. (ECF Nos. 59
and 60.) Plaintiff also sought sanctions against the
Defendants for their failure to respond to his discovery.
(Id.) On August 23, 2016, the Court denied both
motions to compel pending resolution of the third motion to
stay discovery. (ECF No. 61.) On August 9, 2017, the Court
granted Defendants' third motion to stay discovery and
directed “Defendants shall respond to Plaintiff's
discovery requests within thirty (30) days of the date the
Court resolves the pending motion to dismiss.” (ECF No.
September 5, 2017, the Court granted in part, and denied in
part, Defendants' motion to dismiss the Amended
Complaint. The Court lifted the stay of discovery and
directed Defendants respond to Plaintiff's pending
discovery requests within thirty days. (ECF No. 81.) On
October 6, 2017, defense counsel served Mr. Nuñez with
Defendant Wertz's interrogatory responses and noted that
discovery posed to dismissed Defendants would not be
answered. (ECF No. 98, p. 2.) On October 23, 2017, Mr.
Nuñez filed his motion to compel Defendant
Klopotoski's responses to his request for admissions and
first set of interrogatories. (ECF No. 91 and 95.)
Defendant Klopotoski's request for admissions, it appears
defense counsel misspoke when stating that “[t]he first
time [she] saw the discovery requests for Defendant
Klopotoski was when the motion to compel was filed” as
they were in fact the basis of Defendants' third motion
to stay discovery. (Compare ECF No.52, p. 2 and ECF
No. 98, p. 2.) Yet, with that said, the same cannot be
determined with respect to Defendant Klopotoski's first
set of interrogatories. Defense counsel did not mention this
request in Defendants' motion to stay. Regardless, when
alerted to the outstanding discovery obligations, defense
counsel indicated that Defendant Klopotoski would promptly
provide the responses without the requirement of an order to
compel. If pro se litigants were required to comply
with Local Rule 26.3, ...