United States District Court, W.D. Washington, Tacoma
ORDER GRANTING DEFENDANT'S MOTION TO COMPEL,
REQUESTING SUPPLEMENTAL RESPONSE FROM PLAINTIFF, AND RENOTING
BENJAMIN H. SETTLE United States District Judge
matter comes before the Court on Defendant Federal Deposit
Insurance Corporation-Receiver's (“FDIC-R”)
motion to compel (Dkt. 129) and Plaintiff Clark County
Bancorporation's (“CCB”) motion for contempt
(Dkt. 132). The Court has considered the pleadings filed in
support of and in opposition to the motions and the remainder
of the file and hereby rules as follows:
PROCEDURAL AND FACTUAL HISTORY
February 10, 2016, CCB filed an amended complaint asserting
one cause of action arising from the FDIC-R's
disallowance of CCB's claim for tax refunds. Dkt. 88. CCB
owned all of the stock in Bank of Clark County
(“Bank”), which the FDIC-R took over as a failed
institution. CCB and the Bank entered into a Tax Allocation
Agreement. CCB alleges that the agreement “requires
calculation of federal income taxes on a separate entity
basis. A subsidiary may receive only an amount which is equal
to the amount of the tax refund that the subsidiary would
have received from the I.R.S. if its taxes had been
calculated on a stand-alone basis.” Id. ¶
21. CCB attached to the complaint a chart showing the
Bank's percentage taxable income and refund amount.
Id., Exh. E (“Chart”).
discovery FDIC-R served requests for admissions and
interrogatories on CCB. Interrogatory 1 requested an
explanation of the computations and calculation of the Chart.
Dkt. 129 at 28. Interrogatory 3 requested an explanation of a
statement CCB included in its motion for summary judgment.
Id. Interrogatory 4 requested an explanation for and
information pertaining to any denial of a request for
admission. Id. at 29. CCB objected to this
discovery. On November 16, 2017, FDIC-R filed a motion to
compel. Dkt. 129. On December 18, 2017, CCB responded. Dkt.
134. On December 29, 2017, FDIC-R replied. Dkt. 135.
during discovery, CCB served subpoenas on the United States
Department of the Treasury (“DOT”) requesting the
production of certain documents. CCB asserts that DOT has not
responded to the subpoena. On December 1, 2017, CCB filed a
motion for contempt requesting that the Court hold DOT in
contempt for failing to respond. Dkt. 132.
notice to other parties and all affected persons, a party may
move for an order compelling disclosure or discovery.”
Fed.R.Civ.P. 37(a)(1). “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 . . . .” Fed.R.Civ.P. 26(b)(1).
case, FDIC-R moves to compel CCB to respond to
interrogatories 1, 3, and 4. With regard to numbers 3 and 4,
FDIC-R has shown that the information is relevant to issues
in this case. Explanations regarding computations and
calculations for numbers in a chart attached to the complaint
is relevant. Moreover, information regarding a position an
opposing party took in an earlier summary judgment motion is
also relevant. Therefore, the Court grants FDIC-R's
motion on these requests.
interrogatory number 4, FDIC-R has shown that responses are
required. While CCB is correct that Rule 36 does not control
interrogatories, multiple courts have held that, under Rule
33, requesting explanations for denials are appropriate as
long as the party does not exceed the allowed number of
interrogatories. See, e.g.,
Jovanovich v. Redden Marine Supply, Inc.,
C10-924-RSM, 2011 WL 4459171, at *2-3 (W.D. Wash. Sept. 26,
2011). FDIC-R requests information regarding eight denials,
which does not exceed its allotted 25 interrogatories.
Therefore, the Court grants FDIC-R's motion on this
regarding fees, the Court reserves ruling on the fee request.
If CCB timely responds subsequent to this order, then the
Court is inclined to deny fees. However, if CCB asserts new
objections or otherwise obstructs production, FDIC-C may move
for these fees plus others incurred in attempting to resolve
Court finds at least two potential problems with CCB's
motion. First, due process requires notice and an opportunity
to be heard. While CCB certifies that the motion was served
on the parties, the Court is unable to locate any
certification that the motion was served on DOT. Without ...