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Brown v. Artus

January 29, 2008

NATHAN BROWN, PLAINTIFF,
v.
DALE ARTUS, SUPERINTENDENT; LINDA TURNER, DEPUTY SUPERINTENDENT; R.J. MINOGUE, CAPTAIN; JOHN DOE, CORRECTIONS SERGEANT; JOHN DOE, CORRECTIONS OFFICER; AND JOHN DOE, CORRECTIONS OFFICER, DEFENDANTS.



The opinion of the court was delivered by: David E. Peebles U.S. Magistrate Judge

DECISION AND ORDER

Presently before the Court are four motions to compel discovery filed by pro se plaintiff Nathan Brown. Dkt. Nos. 16, 21, 23, and 24. Defendants have responded to all of the motions. Dkt. Nos. 18, 22, 25, and 26. Plaintiff has replied to defendants' responses. Dkt. Nos. 28, 29.

I. First Motion to Compel

Plaintiff's first motion to compel relates to plaintiff's first request for production of documents ("RFP") dated July 20, 2007 and his first request for interrogatories addressed to defendant Turner. Dkt. No. 16 at 3. Plaintiff states that, as of the date of his motion, no response had been provided to these discovery requests. Id. at 4. Defendants oppose plaintiff's first motion to compel. Dkt. No. 18. Defendants' counsel states that on September 25, 2007, responses to plaintiff's first RFP and the Turner interrogatories were served on plaintiff. Id. Plaintiff did not object to the responses after he received them, and has not indicated that he believes the responses to be incomplete, or that the objections stated thereto are not legally sufficient. Although defendants have failed to provide the court with copies of their responses, it is telling that plaintiff has not taken exception to defendants' assertion that they have responded to plaintiff's discovery requests. Accordingly, plaintiff's first motion to compel (Dkt. No. 16) is denied as moot. See, e.g., Hamilton v. Poole, No. 95-CV-239H, 1997 WL 626406, at *6 (W.D.N.Y. Sep. 22, 1997) (denying motion to compel filed by plaintiff where defendants responded to discovery after motion was filed).

II. Second Motion to Compel

Plaintiff's second motion to compel relates to plaintiff's first request for interrogatories addressed to defendant Minogue dated August 6, 2007 and first request for interrogatories addressed to defendant Artus dated August 24, 2007. Dkt. No. 21 at 3. Plaintiff states that, as of the date of his motion, no response had been provided to these discovery requests. Id. at 4. Defendants submitted papers in opposition to plaintiff's second motion to compel. Dkt. No. 22. Defendants' counsel states that on October 11 and 24, 2007, respectively, responses to plaintiffs Minogue and Artus's interrogatories were served on plaintiff. Id.

Plaintiff did not object to the responses after he received them, and has not indicated that he believes the responses to be incomplete, or that the objections stated thereto are not legally sufficient. Although defendants have failed to provide the court with copies of the Minogue responses,*fn1 it is telling that plaintiff has not taken exception to defendants' assertion that they have responded to plaintiff's discovery requests. Accordingly, plaintiff's second motion to compel (Dkt. No. 21) is denied as moot. See, e.g., Hamilton, 1997 WL 626406, at *6.

III. Third and Fourth Motions to Compel

Plaintiff's third motion to compel relates to plaintiff's second request for interrogatories addressed to defendant Artus dated September 17, 2007. Dkt. No. 23 at 1. Plaintiff's fourth motion to compel relates to plaintiff's third request for interrogatories addressed to defendant Artus dated October 1, 2007. Dkt. No. 24 at 1. Plaintiff states that, as of the date of his motions, no response had been provided to these discovery requests. Dkt. No. 23 at 4; Dkt. No. 24 at 5. Defendants oppose both of these motions. Dkt. Nos. 25, 26.

Defendants' Counsel States

Plaintiff sent a first set of interrogatories dated August 24, 2007 to Defendant Dale Artus. The first set included 28 interrogatories including subparts. Defendant Artus responded to the first set and they were mailed to the plaintiff. See Exhibit A. Plaintiff sent a second request for interrogatories upon Dale Artus dated September 17, 2007. See Exhibit B. Pursuant to the Federal Rules of Civil Procedure 33, interrogatories cannot exceed 25 in number including all discrete sub-parts. Accordingly, due to the fact that Defendant Artus has already responded to 28 written interrogatories, plaintiff is not entitled to additional ones and therefore plaintiff's motion to compel should be denied.

Dkt. No. 25 at 1; see also Dkt. No. 26 (arguing that the fourth motion to compel should also be denied because plaintiff seeks to propound in excess of 25 interrogatories).

Federal Rules of Civil Procedure Rule 33(a)(1) States

[u]nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may ...


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