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United States v. Fischer Excavating, Inc.

United States District Court, C.D. Illinois, Rock Island Division

January 25, 2017




         Before the Court are Plaintiff's, Iowa Based Milling LLC (“IBM”), Second Motion for Sanctions and to Compel (D. 79)[1] and Defendants' Concrete Structures of the Midwest, Inc. (“Concrete Structures”) and Continental Casualty Company (“Continental”), Motion to Deposit Funds and For other Relief (D. 87). For the reasons set forth below, the Second Motion for Sanctions and to Compel is GRANTED IN PART AND DENIED IN PART, and the Motion to Deposit Funds and for Other Relief is MOOT.[2]



         The alleged facts in this case have been set forth in detail previously, and the Court will not repeat them here. Suffice it to say that Defendant Concrete Structures of the Midwest, Inc. (“Concrete Structures”) won a contract to resurface a runway at Quad Cities International Airport (“QCIA”). Concrete Structures hired a subcontractor, Defendant Fischer Excavating, Inc. (“Fischer Excavating”), who then allegedly hired Plaintiff Iowa Based Milling, LLC, in an oral agreement, to mill the runway on several occasions. Concrete Structures obtained a bond on the project from Defendant Continental Casualty Company (“Continental”) and Fischer Excavating obtained a bond on the project from Western Surety Company (“Western Surety”). Afterward, Fischer Excavating allegedly shorted Iowa Based Milling more than $85, 000 in fees. Iowa Based Milling filed a seven-count amended verified complaint seeking to recover from Concrete Structures or Fischer Excavating or the bonds provided in their favor. Fisher Excavating in turn filed a three-count counterclaim against IBM, although only the breach of contract claim contained in count I of the counterclaim survived a motion for judgment on the pleadings. Additionally, IBM has now settled this case with all parities but Fisher Excavating and its surety, Western Surety.


         The facts giving rise to the motions now before the Court center around an ongoing discovery dispute between IBM and Fisher Excavating. On March 2, 2015, IBM propounded interrogatories, requests for production, and requests for admission to Fisher Excavating. (D. 81 at p. 2). IBM followed up the requests to Fisher Excavating by letter on April 20, 2015, requesting a response on or before May 1, 2015. Id. Fisher Excavating failed to provide any responses to the discovery requests, a fact which was noted at status conferences with the Court on April 14, 2015, May 28, 2015, and October 22, 2015. On November 1, 2015, IBM filed a motion for sanctions premised on Fisher Excavating's ongoing failure to respond to the discovery requests. (D. 73). Fisher Excavating, in its response, conceded that the requests to admit must be “deemed” admitted due to its failure to respond thereto and did not dispute that it had failed to respond to the interrogatories or requests to produce. (D. 75).

         The Court held a hearing on the motion for sanctions on December 1, 2015. Although the Court denied the motion for sanctions, the Court did find that the unanswered requests to admit were deemed admitted, that Fisher Excavating had waived any objections to the interrogatories or requests to produce, and that it had 21 days to respond to the outstanding discovery requests. Fisher Excavating sent responses to IBM within the time set by the Court but, as outlined in a letter of January 5, 2016 from IBM to Fisher Excavating, IBM found some of the responses deficient.

         On January 8, 2016, the Court held a hearing regarding the discovery Fisher Excavating produced to IBM on December 22, 2015 pursuant to the Court's order. Although at that hearing Fisher Excavating attempted to argue about the scope and relevance of some of the interrogatories, the Court noted that it had previously held that Fisher Excavating's previous failures to respond at all to those interrogatories waived its right to object. However, because the parties had not yet conferred regarding the discovery dispute, the Court directed the parties to discuss the problems IBM had with the answers to interrogatories and set the matter for another hearing after that conferral for January 14, 2016. The parties reported at that hearing that they had reached agreement on the outstanding issues, and Fisher Excavating was ordered, pursuant to the agreement, to correct the deficiencies in its responses by February 26, 2016.

         However, February 26 came and went without Fisher Excavating fulfilling its obligations under the agreement. A month later on March 23, 2016, the Court held another hearing where the parties noted that Fisher Excavating had still not submitted anything to supplement, clarify, or correct the original responses it sent to IBM back on December 22, 2016. The Court gave Fisher Excavating another six weeks to correct the deficiencies pursuant to an agreement reached between the parties and relayed to the Court at the January 14, 2016 hearing.

         The additional six weeks came and went as well, and the parties were again before the Court on August 10, 2016 on the same, ongoing discovery dispute. Again at that hearing, it was undisputed that the deficiencies noted by IBM in its January 5, 2016 letter to Fisher Excavating were still not corrected. The Court, after noting that the trial setting in this case had been moved several times due to the same discovery dispute, directed IBM to file a written motion to compel for its consideration. IBM filed its Second Motion for Sanctions and to Compel pursuant to that direction from the Court.

         In that motion now before the Court, IBM argues that Fisher Excavating has never fully answered the interrogatories served on them despite the numerous extensions of time granted by the Court to them for doing so.[4] Given the many months of delay, IBM sought dismissal of Fischer Excavating's counterclaim and default judgment on its claims as a sanction pursuant to Federal Rule of Civil Procedure 37. IBM also sought its costs and attorney fees related to the issue. (D. 80). Defendant Fisher Excavating responded that its December 22, 2015 production “substantially complied” with the request to answer interrogatories. (D. 93-1).


         After IBM filed the Second Motion for Sanctions and to Compel, Defendants Concrete Structures and Continental Casualty then filed a Motion to Deposit Funds or for other Relief on August 31, 2016. However, those parties subsequently settled this matter with IBM, and, pursuant to the settlement, stipulations of dismissal were filed as to those parties on January 24, 2017. (D. 96). Although Western Surety stated at a January 13, 2017 hearing that it had adopted the motion of its co-defendants, nothing on the Docket indicates that it did so. Moreover, even assuming that it had, the motion seeks permission from the Court for Concrete Structures and Continental Casualty to deposit funds pursuant to Federal Rule of Civil Procedure 67(a). Given that those ...

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