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Dean Davis, Gina Colantuoni, and James Piet v. Jacob S. Ciborowski Family Trust

August 30, 2012


The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge


Plaintiffs bring suit under Title III of the Americans with Disabilities Act (AADA@), alleging that the owner of a commercial property, Jacob S. Ciborowski Family Trust (ATrust@), and the operators of two retail stores that lease space there, Concord Arts and Crafts and Bagel Works, Inc. (ABagel Works@), deny access to persons with physical disabilities.*fn1 Specifically, plaintiffs allege that defendants failed to make the two stores and an unoccupied storefront wheelchair-accessible during a recent construction project, as is required under 28 C.F.R. § 36.402 and 42 U.S.C. § 12183(a)(2). Defendants contest the claim and assert both a counterclaim alleging bad faith, as well as affirmative defenses.

Plaintiffs move to compel the Trust and Bagel Works to provide answers to certain interrogatories pertaining to their financial resources and communications with the City of Concord about the project. In response, the Trust and Bagel Works object on the grounds that the information sought is not relevant, and move for protective orders. Because an objection cannot be combined with a motion for affirmative relief, the motions for a protective order that were included in the objections are not considered here. See United States District Court District of New Hampshire Local Rule 7.1(a)(1).*fn2

Standard of Review

A party may serve interrogatories on other parties that are related to Aany non-privileged matter that is relevant to any party=s claim or defenseBincluding the existence, description, nature, custody, condition, and location of any documents or other tangible things . . . .@ Fed. R. Civ. P. 26(b)(1) & 33(a)(2); see also Fed. R. Civ. P. 34(a) (requests to produce documents). ARelevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.@ Fed. R. Civ. P. 26(b)(1). A party may move for an order to compel another party to answer an interrogatory. Fed. R. Civ. P. 37(a)(3)(B)(iii). The party who moves to compel answers to interrogatories over the opposing party=s objection bears the burden of showing the relevance of the information sought. Caouette v. OfficeMax, Inc., 352 F. Supp. 2d 134, 136 (D.N.H. 2005).


The plaintiffs, Dean Davis, Gina Colantuoni, and James Piet, are individuals with physical disabilities who use wheelchairs. The Trust owns property, known as Phenix Hall, located on Main Street in Concord, New Hampshire. The Trust leases space in Phenix Hall to other entities, including Bagel Works. Phenix Hall underwent a construction project in 2010, which included work on the facade of the building and entrances to the storefronts.*fn3

Plaintiffs bring suit under the ADA and allege that Bagel Works and the other storefronts in Phenix Hall are not accessible to people who use wheelchairs and that defendants should have made changes to the entrances to allow wheelchair access as part of the project. Defendants assert a counterclaim that plaintiffs= ADA claim is frivolous and filed in bad faith. Defendants also raise several affirmative defenses to the ADA claim, including that the alterations plaintiffs seek are neither readily achievable nor technically feasible, that the facilities are accessible to the maximum extent feasible, and that the alterations would impose an undue burden or create an undue hardship on the defendants.

Plaintiffs served interrogatories on the Trust, delivering them by hand to counsel for the Trust on February 2, 2012, and served interrogatories on Bagel Works by mailing them to counsel on February 10, 2012.*fn4 Plaintiffs represent, and defendants do not dispute, that defendants provided unsigned responses to the interrogatories on March 30, 2012. Counsel for plaintiffs then wrote to defendants= counsel, seeking additional information for some interrogatories and asking that defendants reconsider their decision not to answer other interrogatories. In response, defendants provided a copy of a proposed protective order to plaintiffs= counsel but did not supplement their answers to the interrogatories.


Plaintiffs now move to compel defendants to provide answers and documents (requested in interrogatories) that pertain to the defendants= financial resources.*fn5 They also move to compel defendants to provide answers and documents in response to interrogatories about defendants= communications with the City of Concord regarding the building permit process for the 2010 Phenix Hall construction project. Further, plaintiffs seek an award of expenses, including attorneys= fees, incurred in filing the motions to compel. Plaintiffs contend that the discovery they seek is relevant to defendants= affirmative defenses and that defendants have waived any objections to the interrogatories by failing to provide timely responses.

Defendants assert that the requested discovery is not relevant because: (a) Ait is self-evident@ that defendants did not violate the ADA; (b) defendants have not asserted affirmative defenses that implicate financial matters; and (c) defendants have provided the information requested about communications with the City of Concord.

I. Timeliness of Responses

Unless otherwise provided by stipulation or an order of the court, interrogatories must be answered within thirty days of service. Fed. R. Civ. P. 33(b)(2). The grounds for objecting to an interrogatory must be stated with specificity, and A[a]ny ground not stated in a timely objection is waived unless the court for good cause, excuses the failure.@ Fed. R. Civ. P. 33(b)(4). Further, the person who answers ...

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