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Mohnsam v. Nemes

United States District Court, W.D. Kentucky, Louisville Division

July 22, 2019

KURT K. MOHNSAM, Plaintiff,
JASON M. NEMES, et al., Defendants.



         Before the Court is the Motion to Compel and for Sanctions of Defendant, Acuity, A Mutual Insurance Company (“Acuity”). (DNs 74, 75.) Acuity moves to compel answers to certain interrogatories and requests for production of documents propounded to pro se Defendant, Morgan Bryan Perry (“Perry”), as well as for its costs and attorney's fees in making the instant Motion. Perry was ordered to file his response to the Motion on or before February 14, 2019, but did not do so. (DN 77.) As his time to respond has expired, the matter is ripe for decision.

         For the reasons set forth below, Acuity's Motion to Compel and for Sanctions (DNs 74, 75) is GRANTED IN PART AND DENIED IN PART.

         I. BACKGROUND

         The instant action arises out of Perry's alleged failure to compensate his former attorney, Plaintiff, Kurt K. Mohnsam (“Mohnsam”), following the settlement of Perry v. Martin & Bayley, Inc., No. 13-CI-00439, filed in Shelby Circuit Court, and Perry v. Martin & Bayley, Inc., No. 3:13-cv-00055, filed in the United States District Court for the Eastern District of Kentucky (the “underlying actions”). (DN 74, at PageID # 582; DN 1, at ¶¶ 26, 28.) On August 17, 2017, Acuity filed an Answer to Mohnsam's Complaint and a Crossclaim against Perry and Defendants Jason Nemes and Fultz Maddox Dickens, PLC alleging breach of the settlement agreement and mutual release entered into in settlement of the underlying actions. (DN 18.) While Perry originally appeared to attempt to assert a crossclaim against Acuity, the same was struck per the Court's November 30, 2017 Order. (DN 37.)

         On or about June 15, 2018, Acuity propounded interrogatories and requests for production of documents to Perry. (DN 74, at PageID # 582; DN 74-1.) These discovery requests included requests for “information concerning [Perry's] net receipt of the $1, 800, 000.00 settlement[;] itemized list of the current location for the proceeds[;] an accounting of each expenditure, purchase or investment made with the proceeds[;] bank account information of where the proceeds were deposited[;] detailed investment information from the proceeds[;] and detailed expenditure/purchase information.” (DN 74, at PageID # 582.) Acuity also requested documentation to track these topics, including tax returns, bank statements, etc. (Id.)

         In his answers to Acuity's interrogatories, Perry refused to answer several questions regarding his finances on grounds that “th[e] information [wa]s unnecessary without a judgment or court order.” (DN 74-2, at PageID # 617.) In his responses to Acutiy's requests for production of documents, he largely responded that all documents had been destroyed due a break-in and vandalism at the location where the documents were stored. (Id. at 618-19.) When the Parties took Perry's deposition on September 27, 2018, Perry likewise refused to answer some questions regarding his finances and disposition of the settlement funds he received but did answer others. (DN 93, at PageID # 1200-1214.)

         Acuity alerted the Court of a dispute regarding Perry's discovery responses during an October 24, 2018 telephonic status conference, and the Court offered some preliminary guidance on the issues. (DN 67.) The Court then ordered Perry and Acuity to again confer and attempt to resolve their dispute but also granted Acuity leave to file a Motion to Compel if the dispute could not be resolved. (Id.) Acuity stated in its Motion to Compel that it heard nothing from Perry after the October status conference and attempted to call Perry on November 26, 2018 to request “an update on the status of his answers to their written discovery.” (DN 74, at PageID # 584-85.) On the same date, Acuity sent Perry a letter in which it stated:

This is in follow-up to the Court's Order issued on October 26, 2018 directing that you provide answers to certain portions of our written discovery. It has now been four weeks since the Court Order was issued. Please advise immediately as to when you intended to provide the answers per the Court Order.

(DN 74-5 (emphasis added).) Notably, the Court's October 26, 2018 Order directed Perry to provide answers to written discovery propounded by Plaintiff, not Acuity. (DN 67.)

         During a November 29, 2018 telephonic status conference, Acuity indicated that there remained a dispute between it and Perry regarding his discovery responses. (DN 68.) Since not all Parties were present on the call, the Court set a separate telephonic status conference to discuss the dispute. (Id.) Prior to the call, Perry filed additional discovery responses that contained supplemental answers to interrogatories propounded by Plaintiff but as to Acuity, only stated, “Please see the attachments. To the best of my knowledge, at this time, this is all the records that I have for the legal expenses pertaining to this case.” (DN 70, at PageID # 533.) Acuity thereafter tried to contact Perry “requesting compliance with the Court's October 26, 2018 Order . . . ” on December 3, 2018. (DN 74, at PageID # 585.) On December 4, 2018, Acuity sent a letter to Perry that again construed the Court's October 26, 2018 letter as directing Perry to “provide answers to certain portions of [Acuity's] written discovery.” (DN 74-7.) The letter instructed Perry to “advise [Acuity] immediately as to when [Perry] intend[ed] to provide the answers per the Court order.” (Id.)

         During a December 11, 2019 telephonic status conference, Acuity told the Court that it had tried to confer with Perry but that Perry had not provided the requested materials. (DN 72, at PageID # 576.) The Court then set a deadline for any party, including Acuity, to file a Motion to Compel, regarding Perry's discovery responses. (Id. at 576-77.) Subsequent to the call, Acuity again attempted to follow up with Perry by phone and in writing.[1] (DN 74, at PageID # 585-86; DN 74-10.) Acuity asked Perry about the status of his discovery responses and advised that it would file a motion to compel if new answers were not received. (DN 74-10.) On January 14, 2019, Perry called Acuity's counsel regarding the discovery and sent new discovery responses to Acuity.[2] (DN 74, at PageID # 586, 592-93; DN 74-11.) As Acuity was still unsatisfied with the contents thereof, it filed the instant Motion to Compel and for Sanctions. (DNs 74, 75.)


         A. Legal Standard

         Fed. R. Civ. P. 26(b)(1) provides that “[p]arties 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 . . . .” Fed.R.Civ.P. 26(b)(1). This language is broadly construed by the federal courts to include “any matter that bears on, or that reasonably could lead to other matter[s] 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). “When faced with questions over, or disputes about, what information or documents may be obtained based on their relevancy, it is axiomatic that the trial court is afforded broad discretion to determine the bounds of inquiry.” Janko Enters. v. Long John Silver's, Inc., No. 3:12-cv-345-S, 2013 WL 5308802, at *2 (W.D.Ky. Aug. 19, 2013) (citing Chrysler v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir.1981), cert. denied, 454 U.S. 893 (1981)). The scope of discovery is not without limits, however. In assessing whether information is within the scope of discovery, the Court is directed to consider “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.” Fed.R.Civ.P. 26(b)(1). Further, on motion or on its own, the Court may limit discovery that is unreasonably cumulative or duplicative; may be obtained from a less burdensome or expensive source; is outside the scope of discovery; or that a party has already had an opportunity to obtain in the action. Id. at 26(b)(1)(2)(C).

         Fed. R. Civ. P. 33 governs interrogatories and Rule 34 governs requests for production of documents. Fed.R.Civ.P. 33-34. Rule 33(b)(3) requires the responding party to answer each interrogatory separately and under oath to the extent the responding party does not object to the interrogatory. Fed.R.Civ.P. 33(b)(3). Similarly, Rule 34(b)(2)(B) requires a response to a document request to “either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons, ” and Rule 34(b)(2)(C) requires any objection to “state whether any responsive materials are being withheld . . . .” Fed.R.Civ.P. 34(b)(2)(B)-(C). Rules 33 and 34 are structured such that, in combination with Rule 26(g)(1), both the requesting party and the court may be assured that all responsive, non-privileged materials are being produced, except to the extent a valid objection has been made. Heller v. City of Dall., 303 F.R.D. 466, 487 (N.D. Tex. 2014) (quoting Evans v. United Fire & Cas. Ins. Co., No. 06-6783, 2007 WL 2323363, at *2 (E.D. La. Aug. 9, 2007)). A party who believes these rules have been violated “may move for an order compelling disclosure or discovery” provided that the party certifies to the Court that it “has, in good faith, conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed.R.Civ.P. 37(a)(1); see Id. at (a)(3)(B)(iii)-(iv) (providing that a party may move to compel answers to interrogatories propounded under Rule 33 or responses to requests for production propounded under Rule 34).

         B. Analysis

         1. Motion to Compel In its Motion, Acuity requested that the Court compel Perry to provide “direct and complete verified answers” to Acuity's First Set of Interrogatories, Nos. 5, 9, 17(c), 18(c), and 20-25.[3] (DN 74, at PageID # 580, 590.) Acuity also requested that the Court compel Perry to provide answers to its Request for Production of Documents Nos. 1-29, and its Second Set of Interrogatories to Perry, Nos. 27-32. (Id.) The Court will address each of these requests in turn.

a) Interrogatory No. 5
INTERROGATORY NO. 5: Identify each and every document and/or tangible exhibit which you will introduce into evidence or use for demonstrative purposes at the trial in this matter.

(DN 74-1, at PageID # 596.) Perry initially responded by incorporating his answer from Interrogatory No. 3, which stated, “The people listed from the original trial, records are listed with the Shelby County Court House, Shelby County, Kentucky.” (DN 74-2, at PageID # 616.) Perry supplemented his response to state, “To the best of my knowledge, I have already produced all of my evidence.” (DN 74-11, at PageID # 687.) In its Motion to Compel, Acuity argued that Perry did not make a good faith attempt to search “his financial records” and provide what was requested to Acuity. (DN 74, at PageID # 586.) However, Interrogatory No. 5 did not specifically ask for financial information, it merely asked for all documents or tangible exhibits Perry intended to introduce at trial. Nonetheless, upon review, the Court finds that both Perry's answer and supplemental answer are insufficient as they do not include any specific document that Perry intends to introduce at trial. Therefore, Acuity's Motion will be granted as to Interrogatory No. 5. Perry is instructed that he must identify the exhibits he wishes to introduce at trial at this time and may supplement his response at a later date, if warranted, and in accordance with any additional pretrial orders issued by the Court.

b) Interrogatory No. 9
INTERROGATORY NO. 9: Identify the following for any payment or compensation you paid Attorney Mohnsam in consideration of legal work he performed on your behalf:
1. The date of payment.
2. The amount of the payment.
3. Whether the payment was made by cash, check, or credit card.

(DN 74-1, at PageID # 597.) Perry initially responded by stating that “Mohnsam was paid with a check in the amount of $25, 000 for his work on the Federal Case.” (DN 74-2, at PageID # 617.) Perry supplemented his response to state that he did not recall the date of the payment, that all payments were made in either personal or cashier's check, and that he recalled sending a cashier's check for $25, 000 and at least two personal checks of $2, 000. (DN 74-11, at PageID # 688.) Acuity argued that Perry's failure to provide a date was insufficient because the dates would ...

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