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Howard v. Urban Investment Trust

March 18, 2011


Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Harry D. Leinenweber than Assigned Judge Michael T. Mason



WRITTEN Opinion by the Honorable Michael T. Mason on 3/18/11. Defendant Roxanne Gardner's Motion to Compel Discovery [345] is granted in part and denied in part. Status hearing set for 4/14/11 at 9:00 a.m.

O[ For further details see text below.] Notices mailed by Judicial staff.


Back in 2003, plaintiff Ann Howard ("plaintiff" or "Howard") filed suit against defendants Urban Investment Trust, Inc., Synergy Affiliates, LLC, Rudy Mulder, Roxanne Gardner and Johnny Terzakis seeking to recover damages and civil penalties on behalf of the United States of America for violations of the False Claims Act (the "Act"), 31 U.S.C. § 3729-3733. Plaintiff, a former employee of defendants, alleges that the defendants engaged in a scheme to embezzle federal subsidies from the United States Department of Housing and Urban Development ("HUD") in violation of the Act. (See Fourth Amended Complaint [209].) Plaintiff also includes claims for "retaliation and constructive discharge" and intentional infliction of emotional distress.

In October 2006, after the government declined intervention, Chief Judge Holderman lifted the seal on the complaint in this matter and summons were issued. After Judge Anderson referred the case for discovery supervision, this Court set a fact discovery deadline of 8/15/07. That deadline was extended a number of times and now, some three and a half years later, we are still faced with discovery disputes. In the pending motion, defendant Gardner seeks an order compelling plaintiff to (1) answer Interrogatory No. 5 "separately and fully;" (2) answer Interrogatories No. 8 through 29; (3) provide signed and sworn answers to Gardner's Interrogatories; and (4) provide responses to Gardner's Requests for Production.

At the outset, Gardner's request for an order directing plaintiff to sign and swear to her interrogatory answers is denied as moot. While Fed. R. Civ. P. 33 requires answers to interrogatories to be made under oath and include the answering party's signature, plaintiff reports that she has since provided defendant's counsel with a verification for her answers. (Pl.'s Resp. at 3.) Gardner did not dispute this representation in her reply and we accept it as accurate. We address each remaining issue in turn below.

Interrogatory No. 5

Interrogatory No. 5 provides: "Identify all facts that Roxanne Gardner failed to maintain accurate records of Urban Investment Trust's corporate finances, and acted to fraudulently disguise and cover up embezzlement of funds use for her own private purposes..." (Mot. at Ex. A.) Plaintiff objected to the interrogatory as "overly broad, unduly burdensome, vague and ambiguous." Id. Answering over that objection, plaintiff referred Gardner to her responses to Interrogatories No. 4 and 6. In Interrogatory No. 4, Gardner sought similar facts related to Gardner's purported conversion and embezzlement of corporate assets. Plaintiff's response to that interrogatory referenced a number of declarations and discovery documents. Gardner now seeks an order compelling a separate and complete response to Interrogatory No. 5 arguing that plaintiff's reference to a prior interrogatory response and to outside material is improper.

"Ordinarily, responses to interrogatories should not incorporate outside material by reference. Answers to interrogatories must be responsive to the question, complete in themselves, and should not refer to pleadings, depositions, other documents, or other interrogatories, at least when a reference to another interrogatory makes it difficult to ascertain if the original interrogatory has been answered completely without a detailed comparison of answers." 7-33 Moore's Federal Practice - Civil § 33.103. While referencing outside documents is disfavored, it is not prohibited. Courts have allowed outside reference where the reference is clear and not meant to evade answering. See e.g. Williams v. Sprint/United Management Co., 235 F.R.D. 494, 501 (D. Kan. 2006)("Plaintiffs may not answer the interrogatory by generally referring Defendant to the...documents produced...but rather must indicate with specificity where the information can be found."); Kenney v. Shaw Industries, Inc., 764 F. Supp. 1501, 1503 (N.D. Ga. 1991) ("Plaintiff's incorporation by reference in this case is not an attempt to obscure its response to Defendant's interrogatory, but instead is an attempt to respond.").

Here, we find that plaintiff's response to Interrogatory No. 4 serves as a sufficient response to Interrogatory No. 5, both of which seek the factual support for Gardner's alleged misconduct. Plaintiff's references to the documents are unmistakably specific. Additionally, plaintiff's response includes parenthetical descriptions of the facts that she purports support the allegations against Gardner. While plaintiff's response is not in narrative form, the Court finds that it satisfies the requirements of Rule 33.

Interrogatories No. 8-29

With respect to Interrogatories No. 8-29, plaintiff objects on the grounds that those interrogatories violate Rule 33(a), which limits each party to a maximum of twenty-five interrogatories absent a stipulation or court order. Citing to her change of counsel, as well as the fact that plaintiff's responses to Gardner's initial interrogatories were provided years prior to the filing of the operative pleading, Gardner ...

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