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Ormeno v. 3624 Georgia Avenue, Inc.

United States District Court, District of Columbia

May 11, 2015

JOSE LUIS ORMENO, Plaintiff,
v.
3624 GEORGIA AVENUE, INC., et al., Defendants.

MEMORANDUM OPINION

ALAN KAY, Magistrate Judge.

Pending before the undersigned is "Plaintiff's Motion to Compel More Complete Responses to Plaintiff's Interrogatories and Request for Production of Documents" ("Motion") [26] and Memorandum in support thereof ("Pl.'s Mem") [26-1]. Defendants timely filed their Opposition [27], and Plaintiff chose not to file a Reply. The parties have consented to proceed before a United States Magistrate Judge for all purposes and trial [13], and the case was referred to the undersigned [14]. On May 7, 2015, the Court held a hearing on Plaintiff's Motion. For the reasons set forth in this Memorandum Opinion, the undersigned will grant in part and deny in part Plaintiff's Motion to Compel.

I. Background

The underlying suit involves allegations of failure to pay wages and overtime under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., and D.C. Code §§ 32-1003, -1012, -1302. (Complaint [1] at 1). Jose Luis Ormeno ("Plaintiff") alleges that he was an employee of both Manny & Olga's Pizza Bethesda Inc. and 3624 Georgie Avenue, Inc. (Complaint ¶¶ 3-4). Both companies are owned and managed by Bobby Athanasakis. (Id. ¶ 7, Answer [6] ¶ 7). Plaintiff alleges, but Defendants deny, that both companies are also owned and managed by Emmanuel "Manny" Athanasakis. (Id. ). Collectively, Manny & Olga's Pizza Bethesda Inc., 3624 George Avenue, Inc., Bobby Athanasakis, and Emmanuel Athanasakis are "Defendants" in this case.

Plaintiff's visa expired during the pendency of litigation, and he is currently residing in Romania. (Plaintiff's Opposition to Motion to Dismiss [22] at 1). He contends that he is unable to return to the United States. (Id. ) For this reason, Plaintiff did not appear for a May 6, 2014 settlement conference. Defendants moved to dismiss this case on July 10, 2014 due to Plaintiff's inability to appear in person for the remainder of the litigation. (Motion to Dismiss [21] ¶ 10). The undersigned denied Defendants' Motion to Dismiss on August 4, 2014 [24], finding that Fed.R.Civ.P. 17 and Fed.R.Civ.P. 19 did not require a plaintiff to be physically present for litigation.

The undersigned held a telephone conference on January 30, 2015 to discuss the status of the case with the parties, as neither had contacted the Court to reschedule the vacated trial date following the denial of Defendants' Motion to Dismiss. Plaintiff's counsel indicated that she was preparing to file a Motion to Compel, since her attempts to resolve the issue with Defendants had been unsuccessful. See [26-4] and [26-5] (e-mail exchanges between counsel regarding the discovery requests at issue). Plaintiff's counsel represented to the Court that she first attempted to resolve these discovery matters in March 2014 [26-5] and again after the undersigned denied Defendants' Motion to Dismiss. The lateness of Plaintiff's Motion concerns the Court. Nevertheless, Defendants did not object to Plaintiff's Motion, and the Court has the discretion to permit motions to compel after the close of discovery. See Lurie v. MAPMAG, 262 F.R.D. 29, 31 (D.D.C. 2009) (finding that a motion to compel filed outside of the discovery period is not untimely per se ).

The Motion to Compel concerns both interrogatories and requests for production of documents that Plaintiff propounded on November 13, 2013. [26-2]. Defendants untimely responded to those discovery requests on January 6, 2014. [26-3]. Plaintiff asks this Court either to compel Defendants "to provide complete responses to Plaintiff's interrogatories" number 1, 2, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 23, 24, 25, 26, and 28 or, in the alternative, "sanction Defendant's [sic] in accordance with the adverse inference rule in regards to the missing time keeping evidence in this case." (Motion at 1). Plaintiff also contends that Defendants did not comply with any of her fourteen requests for production of documents. (Id. ) Plaintiff states that the failure of the Defendants "to provide complete discovery responses has prejudiced plaintiff in his discovery efforts" and requests that the undersigned reopen discovery "for the limited purpose of permitting Plaintiff to depose certain deponents about the information and documents referenced above, and for admissions." (Id. at 2). Finally, Plaintiff requests "reasonable costs and attorneys' fees incurred by his counsel's preparation of this motion." (Id. )

II. Standard of Review

Trial courts have considerable discretion when handling discovery matters. Food Lion, Inc. v. United Food and Commercial Workers Int'l. Union, 103 F.3d 1007, 1012 (D.C. Cir. 1997) (citing Brune v. Internal Revenue Serv., 861 F.2d 1284, 1288 (D.C. Cir. 1988). The scope of discovery in civil actions is broad and allows for discovery of "any nonprivileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1). Discovery of relevant materials includes "any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citation omitted); McPeek v. Ashcroft, 212 F.R.D. 33, 34 (D.D.C. 2003) (whether information is relevant is "a function of the relationship of the data to the [ ] central accusations of [the] lawsuit.")

Fed. R. Civ. P. 33(b) requires that parties answer interrogatories separately and fully in writing under oath or state the reasons for their objections and answer to the extent the question is not objectionable. Answers to interrogatories must be "true, explicit, responsive, complete, and candid." Covad Communications Co. v. Revonet, Inc., 258 F.R.D. 17, 19 (D.D.C. 2009) (citing Equal Rights Center v. Post Props., Inc., 246 F.R.D. 29, 32 (D.D.C. 2007)). "[A]n evasive or incomplete answer is to be treated as a failure to disclose, answer, or respond." Doe v. District of Columbia, 231 F.R.D. 27, 31 (D.D.C. 2005); Fed.R.Civ.P. 37(a)(4). "A party who has made a disclosure under Rule 26(a) [ ] or who has responded to an interrogatory, request for production or request for admission must supplement or correct its disclosure or response... if the party learns that in some material respect the disclosure or response is incomplete or incorrect, ...; or [ ] as ordered by the court." Fed.R.Civ.P. 26(e)(1)(A), (B). See Norden v. Samper, 544 F.Supp.2d 43, 49 (D.D.C. 2008) (noting a party's duty to supplement discovery).

Document requests are governed by Fed.R.Civ.P. 34. Rule 34 allows any party to serve on any other party a request to produce "any designated documents or electronically stored information stored in any medium from which information may be obtained within the scope of Rule 26(b), that are in the possession, custody, or control of the party upon whom the request was served." Thong v. Andre Chreky Salon, 247 F.R.D. 193, 195 (D.D.C. 2008); Fed.R.Civ.P. 34(a)(1)(A).

III. Analysis

The undersigned notes at the outset that the majority of Defendants' answers were untimely.[1] Defendants first raised objections to two of Plaintiff's interrogatories in their Opposition to Plaintiff's Motion to Compel, and later restated those objections during an April 3, 2015 telephone conference that the undersigned held. (Opposition at 6). Nevertheless, Defendants waived their right to raise objections to Plaintiff's interrogatories per Fed.R.Civ.P. 33(b)(2), which provides that "[t]he responding party must serve its answers and any objections within 30 days after being served with the interrogatories." Since the parties did not stipulate to a longer or short time period under ...


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