United States District Court, W.D. Missouri, Central Division
NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE
before the Court is plaintiff Myron Hubbard's motion to
compel. Doc. 25. For the following reasons, the motion is
Myron Hubbard worked as a psychiatric nurse for the Missouri
Department of Mental Health (the “Department”)
until 2008, when he was denied leave and constructively
discharged. Mr. Hubbard has since brought multiple suits
against the Department pertaining to his discharge and each
case has been dismissed. See Doc. 14; Hubbard v.
Mo. Dep't of Mental Health, No. 15-722, 2016 WL
593585 (E.D. Mo. Feb. 12, 2016) (Hubbard II);
Hubbard v. St. Louis Psychiatric Rehab. Ctr., No.
11-2082, 2013 WL 4052908 (E.D. Mo. Aug. 12, 2013)
(Hubbard I). In this case, the Court granted the
Department's motion to dismiss on the grounds that Mr.
Hubbard's discrimination and fraud claims were barred by
res judicata and that he failed to state a claim for
retaliation by failing to show that the Department took
materially adverse employment action against him. Doc. 14.
Hubbard now asks the Court to compel the Department, pursuant
to Federal Rule of Civil Procedure 37, to disclose all
federal financial assistance received, all federal funds used
for the purpose of employment, all agreements in which the
Department agreed to be subject to Title VI, and to produce
both an affidavit and an answer to Mr. Hubbard's
pleadings. As in prior pleadings, Mr. Hubbard argues that the
Department had a duty to disclose information pertaining to
federal assistance and the applicability of Title VI, that
the Department failed to do so, and that the Department's
failure influenced prior decisions issued both in this case
and the previous cases.
permits a party to file a motion to compel disclosure or
discovery responses. Specifically, the rule authorizes a
party to seek, and a court to issue, an order to compel when
“a deponent fails to answer a question asked under Rule
30 or 31[, ] a corporation or other entity fails to make a
designation under Rule 30(b)(6) or 31(a)(4)[, ] a party fails
to answer an interrogatory submitted under Rule 33[, ] or . .
. a party fails to produce documents . . . under Rule
34.” Fed.R.Civ.P. 34(a)(3)(B). In other words, a motion
to compel is proper if one party first seeks discovery, and
then the other party fails to respond. Mr. Hubbard asserts
that the Department has not made the requested disclosures,
but there is no evidence that he has made any discovery
requests. See Local Rule 26.3(b) (“A party
must file a certificate of service when it serves any
discovery document.”). Rule 37 does not provide
authority to compel responses to discovery requests that were
extent that Mr. Hubbard's “meet and confer”
emails dated March 15, 2019 and March 19, 2019 could be
construed as discovery requests, Doc. 25, pp. 20-22, the
requests are outside the scope and limits prescribed by the
Federal Rules. “Parties may obtain discovery . . . that
is relevant to [a] party's claim . . . and proportional
to the needs of the case.” Fed.R.Civ.P. 26(b)(1). As
Mr. Hubbard's case was dismissed on December 19, 2018,
before the emails requesting information were sent, the
requested information is no longer relevant or proportional
to the case. Accordingly, to the extent Mr. Hubbard is
seeking to compel a response to discovery served after the
case concluded, his motion is denied.
Mr. Hubbard asks the Court to order the Department to answer
his petition. However, Rule 37 does not provide authority to
compel a party to file an answer to pleadings, only to answer
interrogatories or questions asked during a deposition.
Fed.R.Civ.P. 34(a)(3). Moreover, because the Department was
not required to file an answer in response to Mr.
Hubbard's pleading, an order to compel is inappropriate.
Rule 12(b) “provides the pleader with the option of
raising . . . specific defenses by motion prior to the
service of a responsive pleading.” 5B Charles Alan
Wright & Arthur R. Miller, Federal Practice and
Procedure § 1349 (3d ed.). An answer need only be
filed if the motion to dismiss is denied. Cf. Fed.
R. Civ. P. 12(a)(4)(A) (“[I]f the court denies the
motion or postpones its disposition until trial, the
responsive pleading must be served within 14 days after
notice of the court's action.”); Williams v.
Ark. Dept. of Corrs., No. 99-2959, 2000 WL 227977, at *1
(8th Cir. Feb. 28, 2000) (entry of default not appropriate
when “defendants had filed a motion to dismiss and
their answer was not yet due”). Here, the motion to
dismiss was granted, and the case was terminated.
Accordingly, Mr. Hubbard's motion must be denied.