United States District Court, D. Kansas
NATIONAL RAILROAD PASSENGER CORP. and BNSF RAILWAY COMPANY, Plaintiffs,
CIMARRON CROSSING FEEDERS, LLC, Defendant, and EVERETT OWEN, et al., Intervenor-Plaintiffs, and NATIONAL RAILROAD PASSENGER CORP. d/b/a AMTRAK; and BNSF RAILWAY COMPANY, Defendants and Intervenor-Defendants.
MEMORANDUM AND ORDER
J. James U.S. Magistrate Judge.
matter is before the Court on Plaintiffs' Motion to
Compel Discovery Responses Against Intervenor-Plaintiff
Timothy Davidson (“Davidson”) (ECF No. 157).
Plaintiffs request an order overruling Davidson's
objections, and finding insufficient his substantive
responses to seventeen of Plaintiffs' interrogatories and
thirteen of Plaintiffs' requests for production of
documents. Specifically, Plaintiffs seek to compel Davidson
to supplement his answers to Plaintiffs' First Set of
Interrogatories Nos. 1-4, 6, 8, 14-16, 18-19, 22-23, 25-27,
28(b), and produce documents responsive to Plaintiffs'
First Request for Production of Documents Nos. 8, 17, 27-32,
37-39, 46, and 48. Plaintiffs further request that Davidson
be compelled to provide his supplemental answers and
responsive documents within 10 days of the Court's order,
with the exception of Interrogatory Nos. 1, 3 (insofar as it
seeks the dollar value of claimed future economic damages),
4, and Request for Production Nos. 6, 37, 38, and 39, for
which Plaintiffs request that Davidson provide substantive
responses no later than Intervenor-Plaintiffs' expert
filed this motion on April 7, 2017. While this motion was
pending and on the day Davidson's response was due, his
counsel filed an Amended Affidavit in support of their
earlier-filed March 31, 2017 motion to withdraw. The Amended
Affidavit (ECF No. 167) stated that Davidson was served on
April 15, 2017 by private process server with a detailed
letter outlining all pending hearings, trials, and deadlines.
Based upon the Amended Affidavit, the Court entered an order
granting the motion of Davidson's counsel of record to
withdraw.Recognizing this resulted in Davidson being
unrepresented, the Order also extended Davidson's
deadline for filing a response to Plaintiffs' motion to
compel by two weeks, until to May 5, 2017. A copy of the
Court's April 21, 2017 Order and Plaintiffs' motion
to compel was mailed to Davidson. To date, Davidson has not
filed any response in opposition to Plaintiffs' motion to
Davidson failed to file a response to the motion to compel by
the May 5, 2017 deadline, the Court will consider and decide
Plaintiffs' motion as uncontested. As provided by the
Court's Local Rule 7.4(b), “[i]f a responsive brief
or memorandum is not filed within the Rule 6.1(d) time
requirements, the court will consider and decide the motion
as an uncontested motion. Ordinarily, the court will grant
the motion without further notice.” The Court is
cognizant that while his original discovery answers and
responses were prepared by his counsel, Davidson is now a pro
se litigant. Even proceeding pro se, he is not excused from
complying with the rules of the court, and is subject to the
consequences of noncompliance.
Court notes that for all but five of Plaintiffs'
interrogatories and requests for production, Davidson's
answer or response was that it “will be
supplemented.” He asserted “vague and
overbroad” objections to two interrogatories and three
requests for production. The Court overrules these objections.
By failing to timely file a response in opposition to
Plaintiffs' motion to compel, the Court deems
Davidson's previously asserted objections to these
discovery requests abandoned.
the Court grants the motion and orders Davidson to supplement
in writing his answers to the interrogatories and produce
documents responsive to the requests for production that were
identified in Plaintiffs' motion to compel. Davidson is
cautioned that failure to comply with this Court's
discovery order may subject him to sanctions under Federal
Rule of Civil Procedure 37(b)(2)(A), including possibly
prohibiting him from presenting any of the requested
discovery as evidence in support of his claims or dismissal
altogether of his claims from this case. The Court strongly
encourages Davidson to retain another attorney to represent
IS THEREFORE ORDERED THAT Plaintiffs' Motion to
Compel Discovery Responses Against Intervenor-Plaintiff
Timothy Davidson (ECF No. 157) is GRANTED. Davidson is
ordered to serve supplemental answers to Plaintiffs'
First Interrogatory Nos. 2, 6, 8, 14-16, 18-19, 22-23, 25-27,
28(b); and produce all documents responsive to Plaintiffs
First Request for Production Nos. 8, 17, 27-32, 46, and 48.
Davidson shall do so within twenty-one (21) days of the
date of this Order.
IS FURTHER ORDERED that Intervenor-Plaintiff
Davidson shall serve supplemental answers to Plaintiffs'
First Interrogatory Nos. 1, 3 (insofar as it seeks the dollar
value of claimed future economic damages) and 4, and produce
documents responsive to Request for Production Nos. 6, 37,
38, and 39, but he shall have up to and including the
Scheduling Order deadline for Intervenor-Plaintiffs'
expert designations and disclosures, which is presently
November 6, 2017, to do so.
IS FURTHER ORDERED that each party shall bear its
own expenses related to this motion. The withdrawal of
Davidson's counsel during the pendency of this motion to
compel is an extraordinary circumstance which the Court
concludes would make an award of expenses under Fed.R.Civ.P.
IS FURTHER ORDERED that a copy of this Order shall
be mailed to Davidson.
See Apr. 21, 2017 Order
Granting Motion for Withdrawal of Attorneys, ECF No.