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McVeigh v. Climate Changers Inc.

United States District Court, W.D. Washington, Tacoma

February 7, 2017



          ROBERT J. BRYAN United States District Judge

         This matter comes before the Court on Defendant Climate Changers, Inc. d/b/a J.W. Brower Heating & Air Conditioning's (“Brower”) Motion to Compel Discovery. Dkt. 99. The Court has considered pleadings filed regarding the motions and the remainder of the file herein.

         On March 4, 2016, Plaintiff filed this civil action, and now alleges claims against his former employer, Brower, its' president, Marlene Harnish, and a union, International Association of Sheet Mental, Air, Rail, and Transportation Workers, Local 66 (“Local 66”) “pursuant to Section 301 of the Labor Management Relations Act and 29 U.S.C. § 185.” Dkt. 1-1. In his Third Amended Complaint, Plaintiff asserts that there was no just cause for his termination for misconduct or sexual harassment. Dkt. 60. He alleges he was not fully paid. Id. Plaintiff maintains that Local 66 violated their duty of fair representation. Id. The Third Amended Complaint includes claims for breach of contract, breach of the duty of fair representation, defamation per se, intentional and negligent infliction of emotional distress, and wrongful discharge. Id. Plaintiff seeks damages, “[f]or Defendant(s) to be rehabilitated with personal, professional, and social deterrence, ” and for the Court to enforce a provision of the Collective Bargaining Agreement. Id.


         On November 29, 2016, Brower served its First Interrogatories and Requests for Production on Plaintiff. Dkt. 100, at 5-30. Plaintiff sent a pleading entitled “Objection” to Brower's First Interrogatories Answers and Responses to Brower on December 15, 2016. Dkt. 100, at 32-34. In Plaintiff's three page December 15, 2016 “Objection, ” he acknowledges he received the First Interrogatories and Requests for Production and requested “the clarification or correction of the party making Document . . . ‘Climate Changers, Inc. ET AL' is not one of the parties in this action.” Dkt. 100, at 33. Plaintiff requested the “natural signature” of the party that prepared the document and not an, objected to the request that Plaintiff type his answers, complained of the compound nature of the questions asked, and argued that Marlene Harnish should be added to the title. Id. Plaintiff further requested “clarification or correction of Document's ‘all information known to Defendants', its attorneys/agents or investigators.” Id.

         On January 13, 2017, Brower wrote to Plaintiff, informing him he provided incomplete responses to the First Interrogatories and Requests for Production. Dkt. 100, at 37. Brower's counsel indicated that he wanted to meet and confer, and offered dates on times to do so. Dkt. 100, at 37. Plaintiff emailed Brower's counsel on January 17, 2017. Dkt. 100, at 39-40. Brower's counsel spoke with Plaintiff twice on January 17, 2017 after the email was sent. Dkt. 100, at 2. They were unable to resolve the issues presented by Plaintiff's response to the First Interrogatories and Requests for Production. Dkt. 100, at 2. They spoke by phone again on January 19, 2017, to attempt a resolution, and according to Brower's counsel, Plaintiff stated that he would “stand on his objections.” Dkt. 100, at 3.

         On January 26, 2017, Local 66's motion for an order compelling Plaintiff to respond to Local 66's Interrogatories and Requests for Production was granted. Dkt. 106. The undersigned found that his responses to Local 66's discovery requests were inadequate, despite Local 66's counsel's attempts at assisting him to an extraordinary degree. Id. It was noted that “Plaintiff's pleadings are becoming increasingly uncivil. He has filed pages of unwarranted personal attacks on opposing counsel. His allegations against them are without merit, frivolous, and unnecessary. He is strongly cautioned against including these assertions in further pleadings.” Id. Although that Order denied Defendants' motions for attorneys' fees and expenses, Plaintiff was warned:

Plaintiff is expected to fully comply with the discovery requirements under the Federal and Local Rules of Civil Procedure. Plaintiff is warned that failure to do so may result in sanctions, including monetary sanctions. While Plaintiff's personal attacks on opposing counsel (and other non-parties) are unwarranted, Plaintiff is now on notice they constitute a waste of the parties' and court's time and he should refrain from continuing to avoid violating Fed.R.Civ.P. 11.


         The instant motion to compel (Dkt. 99) was filed on January 19, 2017, before the January 26, 2017 order (Dkt. 106); Plaintiff's opposition was filed afterward, on January 30, 2017 (Dkts. 109-110).

         In Brower's motion, it seeks an order compelling Plaintiff to fully respond to its First Interrogatories and Request for Production. Dkt. 99. It also moves for an award of attorneys' fees pursuant to Fed.R.Civ.P. 37(a)(5)(A). Id.

         Plaintiff responds, and repeats his objections as stated in his December 15, 2016 pleading entitled “Objection, ” again disputes whether he uses email as a form of communication, and reasserts an argument regarding the Joint Status Report that has been rejected. Dkt. 109. Plaintiff states that, at one point during his discussions with counsel for Brower, counsel offered to send Plaintiff a letter “stating that he was authenticating that the party requesting responses was in fact Brower.” Id. Plaintiff states that he responded, “the Judge would have to decide what was going to happen.” Id.

         Brower replies, argues that its motion to compel should be granted and that attorneys' fees in the amount of $1, 920.00 (2.1 billable hours at $400 per hour) should be awarded. Dkt. 111. Brower also moves to strike portions of Plaintiff's response regarding issues that were expressly denied in the January 26, 2017 order and Plaintiff's allegation that he does not use email. Id.

         This opinion will first discuss the general standard regarding discovery, then Brower's motion to compel, Brower's motion to strike (Dkt. 111) and lastly, the Brower's motions for attorney's fees.



         Fed. R. Civ. P. 26 (b)(1) provides:

Unless otherwise limited by court order, the scope of discovery is as follows: 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 ...

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