United States District Court, D. Kansas
GCIU-EMPLOYER RETIREMENT FUND AND BOARD OF TRUSTEES OF THE GCIU-EMPLOYER RETIREMENT FUND, Plaintiffs,
COLERIDGE FINE ARTS and JELNIKI LIMITED, Defendants.
MEMORANDUM AND ORDER
L. Rushfelt U.S. Magistrate Judge
the Court is Plaintiffs' Motion to Compel Responses to
Plaintiffs' First Set of Interrogatories and First
Requests for Production of Documents to Defendants (ECF 72).
Defendants oppose the motion (ECF 74). For the reasons set
forth below, the Court grants the motion in part and denies
it in part.
Relevant Procedural History
(“the Fund”) bring this action against Defendants
Coleridge Fine Arts (“Coleridge”) and Jelniki
Limited (“Jelniki”). Defendants are both
companies in Ireland. Plaintiffs seek to collect withdrawal
liability payments against them, pursuant to the Employee
Retirement Income Security Act of 1974 (“ERISA”),
29 U.S.C. § 1001 et seq. and the Multiemployer
Pension Plan Amendments Act of 1980 (“MPPAA”).
Plaintiffs allege Defendants acquired a Kansas corporation,
Greystone Graphics, Inc. (“Greystone”).
Plaintiffs further allege Greystone withdrew from the Fund in
2011, thus subjecting it to withdrawal liability under 29
U.S.C. § 1381. Plaintiffs contend Defendants are liable
for the withdrawal liability payments, because Greystone was
their subsidiary. Thus, Plaintiffs argue Defendants are also
subject to this Court's jurisdiction because Defendants
own Greystone. Defendants deny they are subject to this
Court's jurisdiction. They contend they never had direct
control of the daily affairs of Greystone, did not conduct
business on its behalf, had no authority to make business
decisions related to Greystone, and therefore lack sufficient
minimum contacts in Kansas to subject them to jurisdiction.
Court earlier dismissed this case, concluding it did not have
personal jurisdiction over Coleridge and Jelniki (ECF 52).
Upon appeal the Tenth Circuit Court of Appeals reversed and
remanded the case for “jurisdictional discovery of
material relating to the question of whether Coleridge or
Jelniki, either directly or through their owners, directors,
or agents, were involved in the day-to-day management of
Greystone.” (ECF 59 at 12). The parties have engaged in
discovery regarding this issue. Plaintiffs' motion asks
the Court to compel further responses to Interrogatory Nos.
23, 24, and 25, and to Request for Production Nos. 3, 4, 5, 4
(sic), 8 (sic, ). 9 (sic), 11 (sic), and 12 (sic).
Rule of Civil Procedure 26(b)(1) sets out the general scope
of discovery. It states:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
of both relevance and proportionality now govern the scope of
information is “any matter that bears on, or that
reasonably could lead to other matter that could bear
on” any party's claim or defense. The 2015
amendment to Fed.R.Civ.P. 26(b)(1) omits the requirement that
information must be “reasonably calculated to lead to
the discovery of admissible evidence, ” a provision
that was often misused to define the scope of discovery and
had the potential to “swallow any other
the discovery sought appears relevant, the party resisting
discovery has the burden to establish the lack of relevancy
by demonstrating that the requested discovery (1) does not
come within the scope of relevancy as defined under
Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevancy
that the potential harm occasioned by discovery would
outweigh the ordinary presumption in favor of broad
disclosure.” When the discovery sought is “overly
broad on its face or when relevancy is not readily apparent,
the party seeking the discovery has the burden to show the
relevancy of the request.” A request is overly broad on
its face “if it is couched in such broad language as to
make arduous the task of deciding which of numerous documents
may conceivably fall within its scope.” Relevancy is
determined on a case-by-case basis.
assert that they provided supplemental responses to
Interrogatory No. 23 three days before Plaintiffs filed their
motion. Plaintiffs do not address the supplemental
response to Interrogatory No. 23, and the Court therefore
assumes it is sufficient. Accordingly, it denies as moot the
motion to compel further response to Interrogatory 23.
responded to Request for Production Nos. 3, 4, 5, No. 4
(sic), No. 8 (sic), and No. 9 (sic), by stating they do not
have any responsive documents and will supplement as
necessary. The Court “cannot compel a party to
produce documents that do not exist or that are not in that
party's possession, custody, or
control.” Plaintiffs in their motion do not
challenge this response. They do not allege and have not
provided any information that would challenge the accuracy of
the statements that Defendants do not have responsive
documents. To avoid confusion, however, the Court
directs Defendants to amend their responses to delete the
objections and instead simply state that they do not have
custody, control or possession of the requested documents.
The motion to compel as to Requests for Production Nos. 3, 4,
5, No. 4(sic), No. 8 (sic), and No. 9 (sic) is otherwise
remaining discovery requests at issue are Interrogatory Nos.
24 and 25 and Request for Production No. 11 (sic) and No. 12
(sic). Defendants assert various objections to each of them.
The Court considers the objections and whether the requests
comply with the directions set forth by the Tenth Circuit,
and if so, whether the answers to them are responsive.
Interrogatory No. 24 and Request for ...