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Hunt v. Northwest Suburban Community Hospital

May 22, 2007

KATHY BANKS HUNT AND STEVEN HUNT, PLAINTIFF,
v.
NORTHWEST SUBURBAN COMMUNITY HOSPITAL, INC., FOREST HEALTH SERVICES CORP., BARIATRIC TREATMENT CENTERS OF ILLINOIS D/B/A BARIATRIC TREATMENT CENTER, BARIATRIC TREATMENT SPECIALISTS OF ILLINOIS, S.C., BRIAN BOE, M.D., AND KENT HESS, M.D., DEFENDANT.



The opinion of the court was delivered by: P. Michael Mahoney, Magistrate Judge United States District Court

Magistrate Judge P. Michael Mahoney

MEMORANDUM OPINION AND ORDER

This is a mess. Plaintiffs served defendants with a Request to Admit on August 4, 2004. Responses were provided on September 3, 2004. Then on February 20, 2007, plaintiffs filed their Motion to Deem Facts Admitted, to Strike Certain Answers and For a Ruling on Objections Pursuant to Rule 36 relating to a host of faults with defendants' responses. Plaintiffs' motion challenging defendants' responses comes nearly three years after they were received.

Because plaintiffs' less-than-prompt motion seeks three distinct remedies, the court will address each remedy in turn. However, before getting into the substance of this opinion, the court notes that Local Rule 37.2 is designed to resolve these types of discovery disputes without judicial intervention. The parties and the court would have been better served if these issues were addressed early on through compliance with the local rule.

I. To Deem facts Admitted:

A. Defendants Forest Health, Bariatric Treatment Centers of Illinois & NSCH

Plaintiffs served all of the defendants with the same Request to Admit with one heading addressed to all of the defendants except Dr. Boe and Dr. Hess. This shotgun approach resulted in defendants taking it upon themselves to join together in various factions in constructing their responses and to have various individuals sign responses on behalf of unrelated parties. This further led to: 1) Forest Health's and Bariatric Treatment Centers of Illinois' omission of Northwest Suburban Community Hospital (herein NSCH) from their response;*fn1 and, 2) Dr. Boe's and Dr. Hess's mistaken belief that the Requests to Admit were also directed to them. Normally a party sends a request to admit to each party individually and that party responds on its own behalf.

In responding to plaintiff's Request to Admit, defendants Forest Health and Bariatric Treatment Centers of Illinois provided a combined response on September 3, 2004. Defense counsel for these two defendants also represent NSCH, which never filed a response. Robert Zinnen, Jr., signed the Response on behalf of Forest Health and Bariatric Treatment Centers of Illinois, yet he is President of NSCH (and an employee of Forest Health). Defendants claim in their Motion for Leave to Amend that they "inadvertently omitted [NSCH] from their response" and seek leave to add NSCH's name to their response in order to remedy this oversight. Defendant's Motion to Amend at 1. It seems quite obvious that their response was intended to be on behalf of NCHS as well as Forest Health and Bariatric Treatment Centers of Illinois, as defense counsel claims. After all, the subject of the Request to Admit concerns the availability of equipment, supplies and personnel available at NSCH at the time of plaintiff's injury. Mr. Zinnen, as president of NSCH, would be exactly the kind of person NSCH would have respond on its behalf.

In light of the above, defendant's Motion to Amend will be allowed in part. However, defendants' collective response is unacceptable, as discussed below.

It is clear that Mr. Zinnen is a party as far as Forest Health and NSCH are concerned since he is an employee of the former and the president of the latter. Defendant's Response at 2. Mr. Zinnen's signature on behalf of these entities is appropriate since corporations can only act through their agents, and Mr. Zinnen is an agent of both Forest Health and NSCH. However, it is unclear whether Mr. Zinnen is the appropriate party to be signing on behalf of Bariatric Treatment Centers of Illinois.

Defendants claim that Bariatric Treatment Centers of Illinois did not have any employees at the time of plaintiffs' injury and that "Bariatric Treatment Centers of Illinois is not a functional entity at all; instead it is simply a trade name." Defendants' Response at 2. A defendant may be "functional" or not, and may have had employees at the time of plaintiff's injury or not. That is of little consequence for purposes of determining who signs on its behalf. Bariatric Treatment Centers of Illinois is listed on the docket as a Delaware Corporation. As a corporation, it must have a president or some other agent authorized to sign on its behalf. Based on what the defendants have provided thus far, that person is not Mr. Zinnen and his signature on behalf of Bariatric Treatment Centers of Illinois is inconsistent with the requirements of Federal Rule of Civil Procedure 36.

Plaintiffs claim that since this response was not signed by an attorney pursuant to Rule 36, the court should strike it in its entirety pursuant to Rule 37(c)(2). However, Rule 36 does not require that responses to requests to admit be signed by attorneys. Rather, it requires that responses be in writing and signed by the party or the attorney. Fed.R.Civ.P. 36(a); Baicker-McKee, et al., Federal Civil Rules Handbook, 762 (2007 ed.) (Citing the Advisory Committee Note to Rule 36(a)).

The court hereby strikes the existing collective response and orders defense counsel to provide an amended response for each individual defendant within seven days of this order. If the court does not receive three amended responses within seven days which comply with Rule 36, each of the statements in ...


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