United States District Court, S.D. Illinois
LILIYA TURUBCHUK, individually, and as a representative of the Estate of ALEKSEY TURUBCHUK, Deceased, VLADIMIR NEMSTOV, as parent and guardian of E. NEMSTOV (a minor) and
NEMSTOV (a minor), LUDMILA NEMSTOVA, IRINA TURUBCHUK, Plaintiffs,
E T SIMONDS CONSTRUCTION COMPANY and SOUTHERN ILLINOIS ASPHALT COMPANY INC. Defendants.
DONALD G. WILKERSON, Magistrate Judge.
Now pending before the Court are the Second Motion for Extension of Time filed by Plaintiffs on June 25, 2014 (Doc. 58), the Motion to Compel Discovery filed by Plaintiffs on July 11, 2014 (Doc. 64), the Motion for Leave to File First Amended Complaint filed by Plaintiffs on September 25, 2014 (Doc. 82), the Motion to Stay Scheduling and Discovery Order filed by Plaintiffs on September 25, 2014 (Doc. 83), and the Motion to Quash Rule 30(b)(6) Deposition filed by Defendant, E.T. Simonds Construction Company, on October 8, 2014 (Doc. 85).
For the reasons set forth below, the Motion for Extension of Time (Doc. 58) is DENIED, the Motion to Compel Discovery (Doc. 64) is DENIED, the Motion for Leave to File First Amended Complaint (Doc. 82) is DENIED, The Motion to Stay Scheduling and Discovery Order (Doc. 83) is DENIED, and the Motion to Quash Rule 30(b)(6) Deposition (Doc. 85) is TAKEN UNDER ADVISEMENT.
According to the Complaint filed on May 8, 2012 (Doc. 2), Plaintiffs were involved in a one-car accident on Interstate 24 (in Township 13 in Illinois) on August 21, 2005 that caused the death of Aleksey Turubchuk and severe injuries to the remaining Plaintiffs. On March 29, 2007 Plaintiffs filed suit in this District, entitled Liliya Turbchuk, et al., v. E T Simonds Construction Company and Southern Illinois Asphalt Company Inc., 3:07-cv-216-WDS-CJP (hereinafter "underlying lawsuit"), alleging that Defendants, who were contracted by the State of Illinois to repave the stretch of highway where the accident occurred, were negligent and created unreasonably dangerous driving conditions. The underlying lawsuit was settled on February 27, 2008 and the case was accordingly dismissed, with prejudice, on February 28, 2008.
In the case at bar, Plaintiffs (who are identical to the underlying lawsuit) now assert that Defendants (who also are identical to the underlying lawsuit) made certain fraudulent representations in the underlying lawsuit as to the existence and applicability of insurance agreements that could have satisfied a judgment against them. In particular, Plaintiffs allege Defendants represented that they were joint venturers in the contract with the State of Illinois and that as joint venturers, they were only insured by Bituminous Casualty Insurance Company (hereinafter "Bituminous Policy") with policy limits in the amount of $1, 000, 000. Plaintiffs relied on these representations and settled the underlying lawsuit. Plaintiffs now believe that Defendants concealed additional insurance coverage that was issued to Defendants individually; and, that they are liable, individually, for Plaintiffs' damages. Plaintiffs further believe that this additional insurance could have been used to satisfy judgment in the underlying lawsuit in excess of $1, 000, 000.
The Complaint alleges 10 Counts - Counts 1 through 6 appear to be identical to the negligence and liability claims made in the underlying lawsuit related to the accident; Count 7 alleges intentional misrepresentation; Count 8 alleges fraudulent concealment; Count 9 alleges negligent misrepresentation; and Count 10 alleges constructive fraud. On September 18, 2013, Counts 1 through 6 were dismissed but Plaintiffs were permitted to proceed on Counts 7 through 10 (Doc. 30). Discovery in this matter has been on-going since October 4, 2012 (Doc. 16) and the deadline has been reset twice with a current deadline of January 6, 2015 (Docs. 49, 63).
Pending before the Court are Plaintiffs' Motion to compel discovery response (Doc. 64), the responses thereto (Docs. 68 and 69), and unopposed motion to amend the complaint (Doc. 82), and unopposed motion to "suspend" discovery filed by Plaintiffs (Doc. 83), and Defendant E. T. Simonds' Motion to quash a notice of deposition of its corporate representative (Doc. 85). Each Motion will be taken in turn. Defendants are herein referred to as "Southern" and "Simonds."
Motion to Compel (Docs. 64, 68, and 69)
Plaintiffs served interrogatory requests and requests to produce to each Defendant seeking information on "any and all insurance agreements that may have been liable in the underlying action and also those that may be in the instant action" (Doc. 64, p. 2). In particular, Plaintiffs seek complete responses to interrogatories 6, 7, 16, 17, and 18 served upon Defendants to which responses were served in April, 2014. Southern responds that Plaintiff failed to confer prior to filing the motion (although it was the subject of a conference with the Court on June 30, 2014). Simonds responds that the information that Plaintiffs seek - "why' certain policies were not disclosed in the underlying case" - is either not articulated in the interrogatories at question or has been sought through 5 additional interrogatories propounded by Plaintiff, with leave of the Court, on July 18, 2014.
The interrogatories in question seek the following information:
Interrogatory 6: "With respect to the insuring agreements identified in response to Interrogatory 4, please state fully each and every reason and/or basis for withholding identification of the same in your FRCP 26(a)(1)(A) initial disclosure in the underlying case."
(in response to Interrogatory 4, Defendants identified the Bituminous Policy)
Interrogatory 7: "Please state whether, prior to or at the time that you entered into the Settlement Agreement with Plaintiff, you instructed any person... to withhold disclosure of the insurance [sic] of the insurance ...