Free Motion to Compel - District Court of Colorado - Colorado

Case 1:03-cv-02485-MSK-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:03-cv-02485-MSK-PAC Camille Melonakis-Kurz, individually and on behalf of other similarly situation employees, Plaintiff, v. Heartland Home Finance, Inc., Defendant. ______________________________________________________________________________ DEFENDANT HEARTLAND'S MOTION TO COMPEL DISCOVERY ______________________________________________________________________________ Defendant, Heartland Home Finance, Inc., ("Heartland" or "Defendant"), by counsel, and pursuant to Rule 37 of the Federal Rules of Civil Procedure, hereby respectfully requests the Court to compel the Plaintiffs to answer, fully and completely, the Defendant's First Set of Interrogatories to Similarly Situated Employees and produce all documents requested by Defendant in its First Request for Production of Documents to Similarly Situated Employees. In support of this Motion to Compel, Defendant states as follows: 1. Defendant served its First Set of Interrogatories to Similarly Situated Employees

and First Request for Production of Documents to Similarly Situated Employees (hereinafter collectively referred to as "class-wide discovery requests") on or about April 8, 2005. True and accurate copies are attached hereto as Exhibits A and B, respectively. Defendant's counsel emailed Plaintiffs' counsel and explained that Defendant was serving its class-wide discovery requests on Plaintiffs in the event the Court granted Plaintiffs' conditional certification for

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purposes of class-wide discovery. A true and accurate copy of Defendant's counsel's e-mail is attached hereto as Exhibit C. 2. In an e-mail dated April 11, 2005, Plaintiffs' counsel responded that until the

"Defendant's appeal to the Court's Order is resolved," Plaintiffs' counsel would "not entertain any discovery served upon us." A true and accurate copy of Plaintiffs' counsel's e-mail is attached hereto as Exhibit D. 3. On June 27, 2005, the Court entered a Memorandum Opinion and Order

Regarding Motion for Class Certification (Doc. 273). The Court ordered that: "[t]he Court conditionally shall treat this action as a collective action under the FLSA for purposes of notice and discovery. Counsel for the named Plaintiff will be deemed to represent all Plaintiffs, individually." (Doc. 273, pp.8-9, ¶ 3). The Court also stated that Plaintiffs' "counsel, consistent with their professional obligations, will undoubtedly keep each Plaintiff advised of all developments and proceedings in this litigation and will obtain individual instruction from each client as to the course of this case." (Doc. 273, p. 7). 4. Following the Court's Class Certification Order, Plaintiffs' counsel did not

respond to the class-wide discovery requests, and Defendant's counsel conferred in good faith with opposing counsel to resolve the class-wide discovery disputes in accordance with D.C. Colo. Local Rule 7.1. Counsel for the parties agreed to start by exchanging what were described as "core documents," which included any documents from Plaintiffs regarding their claims for overtime, by September 25, 2005. A true and accurate copy of an e-mail confirming this agreement on September 2, 2005, is attached hereto as Exhibit E. 5. On September 15, 2005, Defendant reminded Plaintiffs' counsel of the agreement

to provide "core documents" by September 25, 2005. A true and accurate copy of this e-mail is attached hereto as Exhibit F. Plaintiffs did not respond fully to Defendant's class-wide discovery requests.

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6.

Defendant's class-wide discovery requests are pertinent to its preparation and

defense of its case. For example, Interrogatory No. 3 asked each Plaintiff to disclose whether he/she had ever been a party in another lawsuit whether civil or criminal in nature. (See Exhibit A, p. 5). Such information is relevant to Defendant's case. For example, felony convictions pertain directly to a Plaintiff's credibility and bankruptcy actions may estop Plaintiffs from pursuing their overtime claims against Heartland.1 Defendant asked deponents these questions and received many affirmative responses;2 however, Defendants were only able to conduct a sampling of depositions, and without Plaintiffs' full and complete responses to Defendant's classwide discovery requests, Defendant is without necessary information to appropriately defend its case.3 7. On October 10, 2005, Defendant again requested that Plaintiffs' counsel respond

to Defendant's class-wide discovery requests, to no avail. See Exhibit L. No formal objection to Defendant's class-wide discovery requests has been filed. 8. Recently, during an e-mail exchange on February 14, 2006, Plaintiffs' counsel

alleged that Defendant had agreed to take depositions in lieu of receiving written interrogatory
1

See 11 U.S.C. § 541; Cable v. Ivy Tech State College (In re Cable), 200 F.3d 467, 472-73 (7th Cir. 1999) (property of the estate includes causes in action and other legal claims that could be prosecuted for the benefit of the estate; only the bankruptcy trustee would have had standing to prosecute such a claim); Payless Wholesale Distrib., Inc. v. Alberto Culver (P.R.) Inc., 989 F.2d 570, 571 (1st Cir. 1993) (party's attempt to bring claim after failure to schedule a cause of action to be an "unacceptable abuse of judicial proceedings"); Louden v. Fed. Land Bank of Louisville, 106 B.R. 109, 112 (Bankr. E.D. Ky. 1989) (plaintiffs were judicially estopped from asserting a cause of action after failing to schedule it in bankruptcy case). 2 For example, Paul Dinkel was convicted and served five months for electronic mail fraud; Charles Luttke was convicted for felony embezzlement; Jamie Schwiderson filed for bankruptcy and still has the paperwork regarding her bankruptcy; and Charles Seelig filed for bankruptcy. True and accurate copies of excerpts from their depositions are attached hereto as Exhibits G, H, I, and J, respectively. 3 In a similar case involving the same Plaintiffs' counsel, McClain and Miles v. Heartland Home Finance, Inc., United States District Court for the Northern District of Georgia, Civil Action No. 1:05-CV-0416-TWT, counsel for the parties discussed the relevancy of Interrogatory No. 3, which culminated in a lengthy letter to Plaintiffs' counsel dated June 30, 2005. A true and accurate copy of the letter is attached hereto as Exhibit K.

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responses from all Plaintiffs. Defendant's counsel responded that it is entitled to complete interrogatory answers and production responses from each Plaintiff and that Defendant agreed in September 2005 (See Exhibit E) to the order of the disclosure of documents (i.e., Plaintiffs would produce "core documents" first) ­ not that Plaintiffs did not have to respond to Defendant's class-wide discovery requests. A true and accurate copy of this e-mail is attached hereto as Exhibit M. In a phone conversation that same day between counsel, Plaintiffs' counsel only offered that they might provide what they deemed "relevant;" hardly a commitment to fully respond to the discovery at issue. 9. More than ten (10) months have elapsed since Defendant served its class-wide

discovery requests to Plaintiffs. Plaintiffs' counsel has had ample opportunity to contact their clients, obtain the requested information, and respond fully and completely to Defendant's classwide discovery. 10. In light of the failure of Plaintiffs to fully and completely answer and produce

documents in response to Defendant's class-wide discovery requests, counsel for Defendant requests that the Court issue an order compelling Plaintiffs to fully and completely respond to Defendant's class-wide discovery requests within thirty (30) days and requiring Plaintiffs to pay the reasonable expenses, including attorneys' fees, incurred by Defendant in making this motion. WHEREFORE, Defendant respectfully requests that the Court issue an order (1) compelling Plaintiffs to fully and completely answer the First Set of Interrogatories to Similarly Situated Employees heretofore served on them by Defendant within thirty (30) days; (2) compelling Plaintiffs to produce all documents described in the Defendant's First Request for Production of Documents to Similarly Situated Employees heretofore served on Plaintiffs by Defendants within thirty (30) days; (3) ordering Plaintiffs to reimburse Defendants for the attorneys' fees and other costs and expenses they have been forced to incur in filing this Motion to Compel Discovery; and (4) for all other relief proper in the premises.

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Respectfully submitted,

/s/ David J. Carr David J. Carr, IN Attorney No. 4241-49 Steven F. Pockrass, IN Attorney No. 18836-49 ICE MILLER LLP One American Square, Suite 3100 Indianapolis, IN 46282-0200 Phone: (317) 236-2100 Fax: (317) 236-2219 [email protected] [email protected] Sean R. Gallagher HOGAN & HARTSON LLP 1200 Seventeenth St., Suite 1500 Denver, CO 80202 Phone:(303) 454-2415 Fax: (303) 899-7333 [email protected] CERTIFICATE OF SERVICE I hereby certify that on February 23, 2006, I electronically filed Defendant's Motion to Compel Discovery with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the following attorneys of record:

Donald Harold Nichols [email protected] Paul J. Lukas [email protected] Michele Renee Fisher [email protected] Sarah M. Fleegel [email protected] Jill Marie Novak [email protected] Rachhana T. Srey [email protected] Nichols Kaster & Anderson 4644 IDS Center 80 South 8th Street Minneapolis, MN 55402 /s/ David J. Carr Attorney for Defendant

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