Trimble v. PHK Staffing, LLC

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

A SHLEY TRIMBLE, ) )

Plaintiff, ) ) v. ) Case No. 20-2024-JAR-GEB ) PHK STAFFING, a/k/a HOLLYWOOD )

CASINO AT KANSAS SPEEDWAY, ) ) Defendant. )

)

ORDER GRANTING MOTION TO COMPEL

AND ORDER TO SHOW CAUSE

This matter is before the Court on Defendant’s Motion to Compel Plaintiff’s

Discovery Responses and To Show Cause (ECF No. 23). For the reasons set forth

b elow, the motion is GRANTED.

This employment discrimination case was filed in Wyandotte County District

Court on December 3, 2019 and removed to this federal court on January 13, 2020. A

schedule was entered to govern the matter in March (Scheduling Order, ECF No. 15) and

i n April, Plaintiff sought a stay of deadlines. (Motion, ECF No. 16.) At that time,

Plaintiff’s counsel, Albert Kuhl, represented that Plaintiff was experiencing a period of

homelessness, and this along with the COVID-19 pandemic creating complications for

both parties caused this Court to extend all deadlines for 60 days. (Revised Scheduling

O rder, ECF No. 17.) 1 Following the revisions to the schedule, Mr. Kuhl sought to withdraw from

representation of Plaintiff. Given Plaintiff’s homelessness, Mr. Kuhl was unable to

maintain contact with her, and all efforts to do so had failed. Plaintiff neither returned

M r. Kuhl’s communications nor sought to contact him. (Motion, ECF No. 18.) After r eview of the briefing and after a motion conference (ECF No. 21), the Court permitted

Mr. Kuhl’s withdrawal (Order, ECF No. 24).

Defendants now seek an order compelling Plaintiff to respond to Defendant’s

w ritten discovery, including Defendant’s First Set of Interrogatories and First Set of R equests for Production of Documents. (Motion, ECF No. 23.) Defendant served the

discovery requests on Plaintiff on March 2, 2020. However, due to Mr. Kuhl’s inability

to reach his client, counsel was unable to respond to the discovery requests. (Id.) As a

p art of the Court’s Revised Scheduling Order, Plaintiff’s deadline to respond to the d iscovery requests was also postponed; however, Mr. Kuhl remained unable to contact his

client and unable to respond to the requests. (See Motion to Withdraw, ECF No. 18;

Motion to Compel, ECF No. 23.) The latest agreed extension on the discovery

r esponses was June 8, 2020, and to date, Plaintiff has not responded. Defendant’s Motion to Compel Discovery was filed on July 20, 2020. As part of

the Order granting Mr. Kuhl’s withdrawal, Mr. Kuhl was directed to send Plaintiff a copy

of the motion to compel. (ECF No. 24.) Mr. Kuhl certified he did so on July 22, 2020.

( ECF No. 25.) To date, Plaintiff has not responded to Defendant’s motion. 2 Pursuant to D. Kan. Rule 6.1(d), Plaintiff’s failure to file a response within the

time required under that rule constitutes a waiver of the right to later file such a response.

Additionally, D. Kan. Rule 7.4 provides that where a party fails to file a response within

t he time required by Rule 6.1(d), “the motion will be considered and decided as an u ncontested motion, and ordinarily will be granted without further notice.” Therefore, the

Court GRANTS Defendant’s motion to compel discovery (ECF No. 23) as unopposed.

No later than October 30, 2020, Plaintiff must respond completely and fully to

D efendant’s First Set of Interrogatories and First Set of Requests for Production of D ocuments. Because Plaintiff failed to serve any timely objections to either the

interrogatories or requests for production, all objections are deemed waived; therefore, no

objections may be asserted.1

In addition to requiring Plaintiff to respond to discovery, because the Court g ranted Defendant’s motion to compel it is obliged to address the issue of sanctions under

Fed. R. Civ. P. 37(a)(5)(A). Under this Rule, if a motion to compel discovery is granted,

the court “must, after giving an opportunity to be heard, require the party . . . whose

c onduct necessitated the motion . . . to pay the movant’s reasonable expenses incurred in

1 Brackens v. Shield, No. 06-2405-JWL-DJW, 2007 WL 2122428, at *1 (D. Kan. July 20, 2007) (noting “It is well settled that in the absence of good cause to excuse a failure to timely object to i nterrogatories or requests for production of documents, all objections not timely asserted are waived.”) (citing Bradley v. Val–Mejias, No. 00–2395–GTV, 2002 WL 1249339, at *4 (D.Kan.

Oct. 9, 2001); Starlight Int ‘l Inc. v. Herlihy, 181 F.R.D. 494, 496 (D.Kan.1998) (quoting Fed. R. C iv. P. 33(b)(4) (“untimely objections are ‘waived unless the party's failure to object is excused by the court for good cause shown.’ ”). 3 m aking the motion, including attorney's fees,” unless certain circumstances make an

award of expenses unjust.2

To permit Plaintiff the opportunity to be heard prior to the imposition of any

s anctions,3 the Court ORDERS Plaintiff Ashley Trimble to show cause in writing t hrough a pleading filed with this Court on or before October 30, 2020, why she should

not be required to pay the reasonable expenses incurred by Defendant in filing its motion

to compel, including attorney’s fees. If the Court determines such sanctions should be

i mposed, it will establish a briefing schedule for the purpose of calculating the amount of r easonable fees.

Furthermore, Plaintiff is notified that her failure to respond to this motion may

result in additional sanctions, up to and including a recommendation to the District Judge

t hat this case be dismissed under Fed. R. Civ. P. 37(b)(2)(A)(v). This Notice and Order shall be transmitted to Plaintiff Ashley Trimble by email to

actrimble88@gmail.com as listed on the docket, given this is the only available contact

information at this time.4

2 Fed. R. Civ. P. 37(a)(5)(A) 3 See Brackens, 2007 WL 2122428 at *1-*2 (discussing how the Court may consider written submissions to be a proper method of allowing the party an opportunity to be heard) (citing M cCoo v. Denny's, Inc., 192 F.R.D. 675, 697 (D.Kan.2000) (citing Fed. R. Civ. P. 37(a)(4)); also citing Fears v. Wal–Mart Stores, Inc., No. 99–2525–JWL, 2000 WL 1679418, at *6 (D. Kan.

Oct. 13, 2000)). 4 As a litigant, Plaintiff has a duty to update the Court with her address and phone number. Any notice mailed to the last address of record is sufficient notice. D. Kan. Rule 5.1. 4 IT IS SO ORDERED.

Dated this 30th day of September, 2020.

s/ Gwynne E. Birzer GWYNNE E. BIRZER United States Magistrate Judge