United States District Court, D. Kansas
UNITED STATES OF AMERICA, ex rel. KEVIN THOMAS and CAROLYN THOMAS, Plaintiffs,
BLACK & VEATCH SPECIAL PROJECTS CORP., Defendant.
JAMES P. O'HARA, Magistrate Judge.
This is the kind of order no judge likes to write, as it highlights unfortunate conduct by otherwise respected members of the bar. At the heart of the matter are plaintiffs' first request for admissions and defendant's motion to strike them (ECF doc. 73). The motion was discussed at length during a pretrial conference on May 8, 2014, at which plaintiffs Kevin and Carolyn Thomas appeared through counsel, Kirk T. May and Jason M. Hans, and defendant Black & Veatch Special Projects Corp. appeared through counsel, Nathan F. Garrett and Kathleen A. Fisher. Due to the high risk of long-lasting fallout from continuing to fight over the subject issue, the undersigned U.S. Magistrate Judge, James P. O'Hara, strongly encouraged counsel to consider retreating from the untenable positions they'd staked out. Counsel declined to do so, which of course is their prerogative. So the court will proceed to resolve the dispute and let the chips fall where they may.
In December 2010, the United States awarded defendant a contract to provide goods and construction services for electrical facilities in Afghanistan in support of the Kandahar Power Initiative project ("the KPI Contract"). The KPI Contract required defendant to comply with Afghan law while working in Afghanistan. Plaintiffs, former employees of defendant, bring this action on behalf of the United States, alleging defendant violated the False Claims Act by creating and submitting fraudulent credential documents to the Afghan government to obtain work permits for its employees working on the KPI Contract.
Discovery closed on March 30, 2014. As required by the court's scheduling order, the parties then began drafting a proposed pretrial order in preparation for a pretrial conference and anticipated summary judgment motion practice. Defense counsel e-mailed an initial draft of the proposed pretrial order to plaintiffs' attorneys on April 23, 2014. Plaintiffs did not submit their proposed revisions to defendant's draft until April 28, 2014, which was the same day the proposed order was originally due to the undersigned's chambers. In their revised draft of the pretrial order, plaintiffs included proposed factual stipulations based on defendant's "admissions, " which plaintiffs assert defendant made by failing to timely respond to plaintiffs' first requests for admission. Unable to resolve the issue informally, defendant filed the instant motion to strike plaintiffs' requests for admissions.
On April 5, 2013, defendant filed a motion to dismiss arguing that plaintiffs' "express certification" and "implied certification" claims under the False Claims Act were fatally defective. About a week later, the court held the initial scheduling conference. The parties discussed and agreed that discovery should be staged to some extent until defendant's motion to dismiss could be decided by the then-presiding U.S. District Judge, Carlos Murguia. The undersigned ordered the parties to confer and e-mail a list of the specific discovery to be conducted in the "near term" and, if any disagreements arose, agreed to hold a telephone status conference. The parties could not agree on the scope of the "near term" discovery. Therefore, the undersigned held a telephone status conference with the parties on April 17, 2013.
Following the April 17, 2013 status conference, the undersigned issued an order instructing plaintiffs to serve "narrowly drawn interrogatories and document requests" by April 18, 2013, and ordered defendant to respond to the interrogatories by April 24, 2013. Plaintiffs timely served their first set of interrogatories and requests for production on April 18, 2013.
That same day, plaintiffs also served their first requests for admission. Plaintiffs included the following message with their requests: "We realize that we did not raise serving requests for admission with Judge O'Hara yesterday, but we think it could shorten the process.... Let me know if you have any questions or an objection to the requests for admission being treated as part of the near term discovery in accordance with Judge O'Hara's order." On April 22, 2013, defendant responded, "while we appreciate your effort to shorten the process... we do not anticipate admitting any of your proposed admissions.... Therefore, we intend to address your interrogatories and requests for production on Wednesday." The next day, plaintiffs replied, "I understand that defendant refuses to answer the requests for admission as part of the near term discovery, be it by denial or otherwise in accordance with the rule. If that is not the case and I have misunderstood, please let me know. Otherwise, we will raise the issue with Judge O'Hara and ask that the requests for admission be part of the near term discovery." That same day, defendant responded, "Right, if you want to add admissions, you'll need to raise it with Judge O'Hara. I don't know, for the purposes of early discovery, how that advances the exercise. So, too, your stated reason for including them is not achieved under the current case circumstances... given that we are responding to requests related to all the identified folks."
Contrary to their April 23, 2013 e-mail, plaintiffs never sought relief from the court to include requests for admission as part of the "near term" discovery. Defendant timely served its responses to plaintiffs' first interrogatories and requests for production as part of the "near-term" discovery on April 24, 2013.
On May 20, 2013, plaintiffs moved to amend their first amended complaint. The court granted plaintiffs' motion and denied defendant's above-referenced motion to dismiss, without prejudice, as moot. On June 4, 2013, defendant filed a motion to dismiss the second amended complaint. In light of the foregoing, the undersigned entered a scheduling order directing the parties to confer and e-mail an updated planning report by August 9, 2013.
On July 26, 2013, Judge Murguia granted in part and denied in part defendant's second motion to dismiss. Because plaintiffs' implied certification claim survived, the court held a status conference and the court entered an amended scheduling order on August 16, 2013. During the conference, the parties did not raise any discovery issues, and the fact-discovery deadline was set for February 10, 2014. Subsequently, the parties propounded written discovery and conducted depositions. At no time during this discovery period did plaintiffs serve requests for admission, including the "First Request for Admission" they proposed during the "near term" discovery period. Additionally, plaintiffs never raised any issue pertaining to their "First Request for Admission" to suggest they believed defendant was required to respond to the requests.
Upon receiving plaintiffs' proposed pretrial order, defendant learned for the first time that plaintiffs contend defendant did not timely respond to the requests and thus, defendant has admitted all of the matters contained in their "First Request for Admission." In response, defendant filed the instant motion to strike.
Defendant argues it had no obligation to respond to plaintiffs' requests for admission because they were beyond the scope of permitted discovery during the "near term" discovery period and were not re-served on defendant when general discovery commenced. Defendant alleges plaintiffs' counsel's contention that defendant has admitted all factual allegations in the requests for admission is "particularly underhanded" and plaintiffs' counsel "could not have reasonably believed that defendant admitted' the facts contained in the proposed requests." In support of its argument, defendant points to the following facts: (1) defendant's counsel specifically informed plaintiffs' counsel that defendant did not intend to admit any of the facts in plaintiffs' ...