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Norton v. Knapheide Equipment Co.

United States District Court, E.D. Missouri, Eastern Division

July 15, 2019

RYAN NORTON, Plaintiff,
v.
KNAPHEIDE EQUIPMENT CO., Defendant.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE

         Currently before this Court is plaintiff's motion to compel interrogatory answers and production of documents (#20). For the reasons set forth below, that motion will be DENIED.

         I. BACKGROUND

         This case arises under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. In essence, plaintiff believes his employment was terminated while exercising his rights under the FMLA to take intermittent leave from work so that he could engage in “bonding time” with his newborn child. Defendant argues, however, that it did not terminate plaintiff for taking FMLA leave; rather, defendant clarifies that it terminated plaintiff under its “workplace policy prohibiting falsification of the reason for an absence.” Specifically, defendant says it terminated plaintiff after learning from his Facebook account that he was deer hunting rather than spending time with his child. Plaintiff insists that deer hunting was necessary to “provide food for his family” and notes that he did, in fact, care for his child later that same night-if not during the day.

         In any event, as to the pending discovery-related motion, both sides argue about whether most of it is now moot since many of defendant's discovery responses have been supplemented following the initial filing of the motion. In his reply brief, plaintiff acknowledges that defendant supplemented its discovery responses and seems to refocus his arguments into four main criticisms, each of which are addressed below.

         II. ANALYSIS

         A. Defendant's Preliminary Statement to Interrogatory Answers

         First, plaintiff asks the Court to strike defendant's “preliminary statement” that prefaces its interrogatory answers. That statement is boilerplate legalese ranging from qualifiers like “defendant responds to [the] interrogatories as it interprets and understands them” to reservations that “defendant reserves the right to supplement or amend its objections and/or answers.” Certainly, the statement could be deemed surplusage- predominantly reciting things already imposed or understood by Rules 26 and 33-but plaintiff provides no law to the effect that it should be struck. To be sure, this Court is not bound by the statement, and it cannot work to limit defendant's responsibilities under the discovery rules; so, there is little appreciable reason for it to be struck. Therefore, this first point is denied.

         B. Defendant's Interrogatory Answers Subject to Objection

         Second, plaintiff takes issue with defendant answering subject to objection in three interrogatories-5, 6 and 7. Plaintiff argues that answering subject to objection, under any scenario, should be deemed a waiver of the objection because to allow such tactics would be to promote “uncertainty” in discovery responses, permitting the responding party to hide information behind an objection while pretending to otherwise provide a complete answer.

         Answering subject to objection has received its share of criticism for the reasons stated by plaintiff. See, e.g., Consumer Electronics Ass'n v. Compras & Buys Magazine, Inc., 2008 WL 4327253 at *3 (S.D. Fla. Sept. 18, 2008) (“such objection and answer … leaves the requesting [p]arty uncertain s to whether the question has actually been fully answered”); Source Network Sales & Marketing, LLC. v. Jiangsu Mega Motor Co., 2017 WL 7596913 at *4 (N.D. Tex. May 15, 2017) (accord); Rowell v. NCO Fin. Sys., Inc., 2014 WL 2154422 at *1 (D. Kan. May 22, 2014) (accord). However, it is unclear how any of these cases square with the 1993 amendment to Federal Rule of Civil Procedure 33, which explicitly envisions a mixture of answer and objection. Rule 33(b)(3) states: “[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Fed.R.Civ.P. 33(b)(3) (emphasis added). To be sure, this Court has repeatedly allowed a defendant to both object to and answer an interrogatory under Rule 33(b)(3). See Drummer v. Corizon, LLC., 2019 WL 2027611 at *2 (E.D. Mo. May 8, 2019); Whitley v. McClain, 2014 WL 1400178 at *1 (E.D. Mo. Apr. 10, 2014). Having failed to address Rule 33(b)(3) or these supportive cases, this point will also be denied.

         C. Relevancy of Other Employees' Work Histories for Purposes of Establishing Plaintiff's Own Backpay

         Third, plaintiff takes issue with defendant's response to interrogatory 4. In that interrogatory, plaintiff asks defendant to “describe how you assigned overtime for plaintiff and employees who held jobs comparable to plaintiff at the facility in which plaintiff was employed.” (emphasis added). Plaintiff says he needs the overtime information related to other employees because “the FMLA provides for backpay … [and] if defendant discloses the overtime earnings of the employees who remained, plaintiff can better calculate his [own] wage loss[es].” The primary contention is whether this information is relevant. Defendant argues that “calculating plaintiff's lost wages based on his [own] work history rather than on others' work histor[ies] is less speculative and burdensome[.]”

         This Court is inclined to agree with defendant. Plaintiff simply declares the sought-after-information is sufficiently relevant, but he cites no law in his favor nor explains why the overtime given to other employees would be relevant to his own damages. Indeed, “[w]hen calculating a back-pay award, the determination of how many hours the employee likely would have worked but for [their] unlawful termination is typically based upon the ...


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