Keeping score #4 – Who’s calling the game?

After a review of the pleadings and the applicable law, and considering argument of counsel, the Court finds as follows…

Who made the call?

The actual issue now before the Court is whether discovery propounded and responded to in state court is valid and enforceable and whether or not the limitations of 30 contained in the federal court case management order should be interpreted to include the already propounded state court discovery. Had counsel raised the issue, it is probable that the undersigned would have allowed a very limited amount of additional discovery. Because no attorney mentioned the prior discovery, the usual limitation of thirty was included in the case management order. Unaware of the state court discovery when the order was entered, the undersigned had no “intent” either way by entry of the Order…

Who made the call?

Counsel have both submitted pertinent cases…Some of the cases involve discovery propounded but not answered prior to removal. The law is clear that this discovery is no longer answerable, as Rule 26 specifically provides that no party shall serve or seek discovery from any source until after the attorney conference required in Rule 26(f). The law is less clear as to discovery which was both served and answered in state court.

After careful review of the authorities

Who made the call?

In the case now before the Court, the attorneys had a misunderstanding as to whether objections would be made to additional discovery. Because of the misunderstanding, and because new counsel appeared for Plaintiffs upon the removal, additional discovery will be allowed under these particular circumstances. The undersigned finds that each party may propound a total of forty-five requests for admission and forty-five interrogatories. That discovery propounded and responded to in state court will be included in the total number. Plaintiffs may withdraw the discovery in controversy and revise it to conform with these limitations.

Who made the call?

Who reviewed the pleadings and applicable law and arguments of Counsel before deciding? Who made it a point to reassure both parties there was no ill “intent” toward either party in the case management order?

Who completed a careful review of the authorities and admitted there was an area where the law was less clear?  Who considered the circumstances – the misunderstanding, the change of counsel and entered an Order intended to favor neither party?

Who balanced the scale of justice?

Who made the call?

Magistrate Judge Linda Anderson.

Who’s calling this game?

Who made the call?

The Government argues against a full lifting of the seal because it would “compromise the Government’s ability to conduct an adequate civil investigation of this case.” The Government gives no explanation for how the investigation would be compromised by unsealing the case.

Who made the call?

Plaintiffs offer little in the way of argument or legal authority explaining why the amendment would be futile other than the conclusory statement that the release did not apply to Plaintiffs claims against State Farm. In the absence of a compelling explanation for why the amendment would be futile, the Court finds that issue of the scope and application of the April 21, 2009, release should be allowed to proceed…the [320] Motion to Amend is Granted.

Who made the call?

The gist of Plaintiff’s present motion [352] is that if Nationwide is going to have a mental health expert to impeach or rebut her testimony, then Plaintiff should be allowed to have one to support her claim. Plaintiff cites no authority whatsoever to support this contention, and she fails to give any reason for her failure to timely designate such an expert.

Who made the call?

Without explanation or citation of any authority, Plaintiff states she is “unable to file a motion to compel until the full time period in which Nationwide has to respond to the discovery has elapsed…

Who made the call?

Who expects an explanation or citation when common sense is the authority?

Who made the call?

Magistrate Judge Robert Walker

Who’s calling this game?

Magistrate Judge Alexander called the Order in O’Keefe v State Farm.  Counsel for O’Keefe immediately filed a Motion for Clarification of the Order – and in doing so established a point that merits further inquiry in any Katrina insurance case removed from State Court:

Plaintiffs contend it is necessary to “re-serve” discovery requests in Federal Court in order to ensure Defendants respond to critical discovery requests pursuant to the Federal Rules of Civil Procedure, and in order to enable Plaintiffs to have the Court overrule improper objections and compel the Defendants to give proper and complete discovery responses pursuant to Fed. R. Civ. P. 37.

Magistrate Judge Walker called the next four including the first two that came to mind when reading similar language in the two new Orders in Politz v Nationwide – the Order to Unseal the Rigsby qui tam , the Order granting State Farm’s Motion to file an Amended Answer in the Rigsby qui tam, the Order denying Mrs. Politz’s motion to designate a mental health expert; and the Order denying Mrs. Politz’s motion for reconsideration of motion to set a discovery deadline.

The selected orders issued by Judge Walker are just four of the many examples of plaintiffs’ arguments dismissed without evidence of the methodical review documented in Judge Alexandar’s Order.  vienna-sausage-in-can

If making law is like making sausage, Judge Alexander grinds Jimmy Dean and Judge Walker cranks out Vienna (without the beer and crackers).

Vienna is not considering that Mrs. Politz did not seek and receive treatment for mental and emotional problems as conceptualized and promoted by Nationwide.  The very first time Mrs. Politz selected and consulted a mental health professional was June 2009.

Vienna is failing to provide Mrs. Politz with the opportunity to obtain discovery after being advised by Plaintiff’s Counsel that Defendant’s current response is incomplete. images 2

Vienna is the inability to distinguish compelling documentation from these.

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