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Continental Western Insurance Co. v. Opechee Construction Corp.

United States District Court, D. New Hampshire

March 2, 2016

Continental Western Insurance Company
Opechee Construction Corporation, et al. Opinion No. 2016 DNH 043



Continental Western Insurance Company (“Continental”) brings a subrogation action against the general contractor, Opechee Construction Corporation, that built the Hampton Inn in Dover, New Hampshire, and two plumbing subcontractors, North American Plumbing & Heating, LLC and Linx Ltd (“Linx”). The claims arise from extensive water damage at the hotel caused by a pipe failure. Continental moves to compel Linx, the hotel’s pipe flange supplier, to respond to its discovery requests. Linx objects.

In response to Linx’s objection to the motion to compel, counsel for Continental filed a reply, which was a letter on firm stationary addressed to the undersigned judge. The letter was struck, because it did not comply with the requirements for format and service, see Local Rule 5.1 and Federal Rule of Civil Procedure 5(d)(1), and the requirement to seek leave to file a reply, see Local Rule 7.1(e)(2). See Order, document no. 60. Continental then filed a motion for leave to reply, which did not include a certification of concurrence as required by Local Rule 7.1(c), and appended the same letter that had been struck previously.

The errors in the motion for leave to file a reply were noted on the docket and Continental was given an opportunity to correct the errors, but Continental did not correct the motion. Linx did not respond to the motion for leave to reply. Because the motion for leave to reply does not comply with Local Rule 7.1(c) and because the proposed reply is a nonconforming document that was struck previously, the motion for leave to reply is denied.

I. Standard of Review

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1). Whether discovery is “proportional to the needs of the case, ” depends on, among other things, “the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. If a party fails to respond to requests for production or interrogatories, the party seeking discovery may move to compel production of the requested documents or answers to the interrogatories. Fed.R.Civ.P. 37(a)(3)(B)(iii) & (iv).

The party seeking an order compelling discovery responses over the opponent’s objection bears the initial burden of showing that the discovery requested is relevant. Caouette v. OfficeMax, Inc., 352 F.Supp.2d 134, 136 (D.N.H. 2005). Once a showing of relevance has been made, the objecting party bears the burden of showing that a discovery request is improper. See, e.g., Gowan v. Mid Century Ins. Co., 309 F.R.D. 503, at 509 (D.S.D. Sept. 11, 2015); Collins v. Bledsoe, 2015 WL 5174021, at *2 (M.D. Pa. Sept. 2, 2015).


Continental served a first set of interrogatories and first set of requests for production of documents on Linx on June 16, 2015. Linx did not respond to Continental’s discovery requests.

In September of 2015, the parties learned that Linx had become the subject of a receivership action in the Rhode Island Superior Court for Newport County (“the state court”). On October 5, 2015, the state court issued an order appointing a receiver over Linx. That order provided that the “continuance of the prosecution . . . of any action” against Linx is “hereby restrained and enjoined.” Motion to Continue, exhibit 1, document no. 56-1, at ¶ 14. The order also allowed the receiver to “take possession and charge of all of the said estate, assets, effects, property and business” of Linx. Id. at ¶ 3. Linx represents that pursuant to the order, the receiver has obtained possession of Linx’s documents.

Counsel for Continental and Linx have had multiple discussions concerning the status of Continental’s discovery requests. During these discussions, Linx’s counsel informed Continental’s counsel that the receivership was hindering Linx’s attempts to obtain the requested documents and information. Further, Linx represents that its counsel has repeatedly sought the receiver’s assistance in providing responses to Continental’s discovery requests, but the receiver has refused to cooperate until the state court rules on several pending motions concerning the applicability of its stay order. Linx also represents that it is no longer in business and does not have any employees to aid in discovery.

On January 8, 2016, Continental moved to compel Linx to respond to its discovery requests. Linx objected.


As a preliminary matter, this action is not stayed by the state court’s order in the receivership proceeding. When Linx filed a letter in this case, on October 20, 2015, notifying this court of the receivership proceeding in Rhode Island, the court issued an order explaining that a letter was not a proper means to request a stay of this case. The court ordered Linx to “file a motion providing a detailed legal and ...

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