United States District Court, D. New Hampshire
A. DiCLERICO, Jr., District Judge.
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.
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.
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.
Standard of Review
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).
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).
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
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 Â¶ 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 Â¶ 3. Linx represents that pursuant to the
order, the receiver has obtained possession of Linx's
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.
January 8, 2016, Continental moved to compel Linx to respond
to its discovery requests. Linx objected.
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