Greer v. Bruce (In re Bruce)

Judge Buchanan

Chapter 7
DECISION AND ORDER: 1) DENYING DEFENDANT'S MOTION DISMISSING GREER'S CLAIM AGAINST PROPERTY FOR FAILURE TO ANSWER INTERROGATORIES [Docket Number 17]; AND 2) REQUIRING PLAINTIFF TO RESPOND TO DISCOVERY REQUESTS WITHIN THIRTY (30) DAYS

This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a) and 1334, and the standing General Order of Reference in this District. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I). This matter is before this Court on Defendant's Motion Dismissing Greer's Claim Against Property for Failure to Answer Interrogatories [Docket Number 17]; Plaintiff Robert Greer's Memorandum in Opposition [Docket Number 18]; and Defendant Gerald Bruce's Reply Memorandum [Docket Number 20].

I. BACKGROUND

On June 6, 2017, Defendant-Debtor Gerald Bruce ("Debtor") served documents on Plaintiff-Creditor Robert Greer ("Greer") captioned "Request for Production of Documents, Issued to Robert Greer" and "Interrogatories Issued to Robert Greer" [Docket Number 17, Ex. A]. The Debtor sought information from Greer that he thought would be relevant to defending his position in this adversary proceeding.

On July 17, 2017, the Debtor filed Defendant's Motion Dismissing Greer's Claim Against Property for Failure to Answer Interrogatories ("Motion"). The Debtor asserts that he received no responses from Greer within the thirty (30) day response time. The Debtor appears to request several alternative remedies for Greer's failure to respond: 1) deeming certain facts as true; 2) compelling Greer to turn over the requested documents; and 3) dismissing the adversary.

Greer responded to the Debtor's Motion asserting that dismissal is an extreme sanction that is not an available remedy for a mere failure to respond to discovery requests when the Debtor failed to first seek extra-judicial means to resolve the discovery dispute and no court order has been violated. Alternatively, if the Debtor's Motion is considered one to compel discovery, Greer asserts that the Motion should be denied because, again, the Debtor failed to seek extra-judicial means to resolve the dispute prior to filing the Motion.

Furthermore, Greer asserts that the Debtor's discovery requests do not seek information that is relevant to the claims being litigated in this adversary proceeding. According to Greer, the Debtor's requests focus on issues that already have been litigated in state court and relate to the state court judgment that Greer obtained against the Debtor prior to the bankruptcy filing, which cannot be re-litigated in this Court based on res judicata or collateral estoppel principles. Because the information sought is allegedly irrelevant, Greer asserts that it is not subject to discovery.

II. ANALYSIS

Through his Motion, the Debtor seeks several alternative remedies for Greer's failure to respond to the Debtor's discovery requests, including dismissal of this action, deeming certain facts as true, and compelling Greer to respond to the requests.

Parties are directed to answer discovery requests through various discovery rules including Federal Rule of Civil Procedure ("Rule") 33, governing interrogatories directed to a party, as well as Rule 34 which governs requests for production of documents. See Fed. R. Civ. P. 33 (incorporated into adversary proceedings by Fed. R. Bankr. P. 7033) and Fed. R. Civ. P. 34 (incorporated into adversary proceedings by Fed. R. Bankr. P. 7034). Failure of a party to cooperate in discovery and respond to those requests is governed by Rule 37 made applicable to adversary proceedings by Federal Rule of Bankruptcy Procedure 7037. Rule 37 provides in relevant part:

(a) Motion for an Order Compelling Disclosure or Discovery.

(1) In General. 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.

* * *
(d) Party's Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection.

(1) In General.

(A) Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if:

(i) a party or a party's officer, director, or managing agent--or a person designated under Rule 30(b)(6) or 31(a)(4)--fails, after being served with proper notice, to appear for that person's deposition; or
(ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.

(B) Certification. A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.

(2) Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).

Fed. R. Civ. P. 37. Pursuant to these provisions of Rule 37, a party filing a motion to compel discovery or a motion for sanctions must include a certification that the movant has, in good faith, attempted to confer with the opposing party in an attempt to resolve the dispute without court involvement. Id.; Rhiel v. Hook (In re Johnson), 408 B.R. 115, 119 (Bankr. S.D. Ohio 2009). The purpose of this certification requirement is "'to encourage litigants to resolve discovery disputes by informal means before filing a motion with the court.'" Id. at 120 (citing Shuffle Master, Inc. v. Progressive Games, Inc., 170 F.R.D. 166, 170-71 (D. Nev. 1996)).

In the case at hand, the Debtor includes no certification that he has attempted to confer with Greer and resolve the discovery dispute prior to filing the Motion. Accordingly, whether viewing it as a motion to compel discovery or a motion for sanctions, the Debtor's Motion is properly denied.

While the Motion is properly denied, that denial should not be viewed by Greer as validation of his decision to ignore the Debtor's discovery requests. Greer has asserted in his response to the Debtor's Motion that he did not answer the discovery requests because they targeted information that is irrelevant to the matters at issue in this adversary proceeding. While that may or may not be true, Greer is not permitted to ignore the Debtor's requests. See Fed. R. Civ. P. 37(d)(2).

Greer may be correct that some of the Debtor's discovery requests are aimed at matters determined in the state court judgment that cannot be revisited by this Court. See Memorandum Decision Denying Plaintiff Robert Greer's Motion for Partial Summary Judgment, Docket Number 28, p. 19, n.6 (noting that this Court cannot review the appropriateness or basis for the state court's judgment but is, instead, limited to determining whether the judgment debt is excepted from discharge). Interrogatory request numbers 3 and 4 and document production request numbers 1, 2, 3 and 4 appear to fall in this category.
However, some of the Debtor's other discovery requests, such as questions regarding the Debtor and Greer's relationship, may be relevant to Greer's claims in this adversary proceeding including elements regarding the Debtor's intent. Interrogatory request numbers 1 and 2 and document production request number 5 appear to fall in this category.

When a party believes a specific interrogatory or production of document request is improper, the appropriate action is to respond to the specific request with an objection. See Fed. R. Civ. P. 33(b)(3) and (4); Fed. R. Civ. P. 34(b)(2)(A)-(C); Fed. R. Civ. P. 37(d)(2). Greer's decision to ignore the discovery requests forced an unrepresented party to navigate the unfamiliar terrain of the discovery rules and their provisions related to compelling a response. Greer's inaction further forced the Debtor to continue defending himself in this adversary proceeding without the benefit of the evidentiary material that might have been produced through discovery.

Accordingly, this Court will extend the discovery deadline to give Greer an additional thirty (30) days to respond to the Debtor's discovery requests. Upon Greer's failure to respond within this deadline, this Court will permit the Debtor to file a new motion to compel discovery and/or motion for sanctions without the need for the Debtor to confer with Greer or attempt to resolve the discovery dispute prior to filing the motion.

III. CONCLUSION

For the reasons stated herein, Defendant's Motion Dismissing Greer's Claim Against Property for Failure to Answer Interrogatories [Docket Number 17] is DENIED.

Plaintiff Robert Greer is given thirty (30) days , from the date of the entry of this Decision and Order, to respond to the Debtor's discovery requests.

SO ORDERED.

This document has been electronically entered in the records of the United States Bankruptcy Court for the Southern District of Ohio. IT IS SO ORDERED.

/s/ _________

Beth A. Buchanan

United States Bankruptcy Judge
Dated: October 18, 2018 Distribution List:

Kenneth Grant Hawley, Esq.

Stephenie Nicole Lape, Esq.

Gerald Benjamin Bruce

316 Laurel Ave

Hamilton, OH 45015