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McNulty v. Casero

United States District Court, D. Maryland

October 24, 2019

JOHN S. MCNULTY, ET AL., Plaintiffs,
ROBERT A. CASERO, JR., ET AL., Defendants.


          Stephanie A. Gallagher, United States District Judge

         Plaintiffs John and Carolyn McNulty (“the McNultys”) filed a thirteen-count Amended Complaint against Defendants Robert Casero and Catherine Mary Hattenburg (“the Caseros”) for compensatory, punitive, and special damages, a declaratory judgment to resolve a boundary dispute between the parties, and actions to quiet title and for ejectment. ECF 10. On October 31, 2017, the Caseros filed a Motion to Compel Discovery, ECF 65 (“the Motion”). The McNultys responded on November 14, 2017, ECF 68 (“the Opposition”), but the Caseros did not reply. On January 4, 2018, this Court stayed this case, pending the outcome of mediation, and denied the Motion without prejudice. ECF 89. On October 15, 2019, this Court lifted the stay and granted the parties' request to reinstate the Motion. ECF 118. No. hearing is necessary. See Loc. R. 105.6 (D. Md. 2018). For the reasons stated herein, the Caseros' Motion is granted.


         The McNultys and the Caseros are neighbors on Salt Lake Road, which is located along the Mason Dixon Line at the border of Harford County, Maryland and York County, Pennsylvania. ECF 10, ¶¶ 1-2. The McNultys' property is situated in York County, Pennsylvania. Id. ¶ 1. The Caseros' property lies within Harford County, Maryland. Id. ¶ 2.

         At the center of the dispute is the Mason Dixon Line's location in relation to Salt Lake Road. Salt Lake Road runs east to west, parallel to the northern border of the Caseros' property and to the southern border of the McNultys' property. ECF 2-5. The McNultys allege that the southern border of their property “is coterminous with the long-recognized” location of the Mason-Dixon Line. Id. ¶ 23. The McNultys further allege that the “long-recognized” location of the Mason Dixon Line, and therefore the southern border of their property, is approximately ten feet south of Salt Lake Road. Id. ¶¶ 14-15. On April 1, 2015 the Caseros executed a “Confirmatory Deed” stating in part that the northern boundary of their property was “the southerly side of . . . the Mason Dixon Line.” Id. ¶ 32. That Confirmatory Deed, however, indicates that the northern border of the Casero property, and therefore the Mason Dixon Line, “lies on and through” Salt Lake Road. ECF 18-4 at 1. The McNultys also allege that the Caseros built a driveway that encroaches on their strip of land (ten feet south of Salt Lake Road), and that, on two different occasions, the Caseros destroyed a fence on that land. ECF 10, ¶¶ 18-22.

         Based on these alleged encroachments, the McNultys bring thirteen claims for relief: a request for declaratory judgment that they own the disputed land in fee simple (Count I); an order ejecting Defendants from the disputed portions of the McNulty Property (Count II); an award of all mesne profits Defendants retained during their possession of the disputed portion of the McNulty Property (Count III); an order quieting title to the disputed land (Count IV); in the alternative, an order declaring that the McNultys have adversely possessed the disputed lands in question (Count V); and claims for compensatory and punitive damages and attorneys' fees in tort, including trespass, trespass to chattel, conversion, two counts of continuing trespass (based on the fence removal and the driveway), two counts of continuing nuisance (based on the fence removal and the driveway), and slander of title. ECF 10 (Counts VI-XIII).

         The McNultys initially filed their Complaint against the Caseros on June 28, 2016. ECF 1. On September 3, 2016, the parties submitted a Joint Status Report requesting a scheduling conference and asking the Court to “allow for an early motion for summary judgment, prior to discovery, ” but indicating the McNultys' desire to file an Amended Complaint. ECF 7, ¶¶ 4-5. The Court thereafter held a scheduling conference and issued a Scheduling Order setting both a November 2, 2016 deadline for the McNultys to amend their Complaint, and a November 16, 2016 deadline for the Caseros to file either a “motion to dismiss or an answer and motion for summary judgment.” ECF 9. The Caseros filed a “Motion to Dismiss Amended Complaint and/or for Summary Judgment” on November 15, 2016. ECF 14. The McNultys filed a Cross Motion for Summary Judgment on December 5, 2016. ECF 17; ECF 18.

         On January 5, 2017, United States District Judge J. Frederick Motz issued a Memorandum Opinion (“the Opinion”) granting the McNultys' Cross-Motion for Summary Judgment, and denying the Caseros' Motion for Summary Judgment, “on the issue of liability.” ECF 22-1 at 1. The Caseros moved for reconsideration of Judge Motz's Opinion, ECF 24, and to strike the Opinion, ECF 43. Judge Motz denied both motions. ECF 27 (denying the Motion for Reconsideration); ECF 54 (denying the Motion to Strike). Thereafter, the parties began engaging in discovery. Upon the McNultys' motion, ECF 46, ¶ 10, Judge Motz issued a ruling to “confirm that discovery shall relate to the claims for relief only.” ECF 50.

         Before the Court is the Caseros' Motion to Compel, ECF 65. The Caseros assert that, after receiving no correspondence from the McNultys' counsel, [1] they noted depositions for several individuals, including four of the McNultys' neighbors: George Gerst, Bernie Gerst, Jim Lewis, and Kim Lewis (collectively, “the McNulty neighbors”). ECF 65, ¶¶ 1, 3. One of the McNultys' interrogatory responses listed these individuals as having “personal knowledge of material facts in this matter.” ECF 65-2 at 2-3 (Plaintiff Carolyn McNulty's Objections and Responses to Defendant Robert A. Casero's First Set of Interrogatories). Later, however, counsel for the McNultys represented to the Caseros' counsel that the McNulty neighbors “do not have knowledge of damages and were inadvertently listed on the Interrogatory Responses.” ECF 65-1 at 2 (email chain between counsel for both parties). The McNultys indicate that they have served supplemental interrogatory responses to correct this purportedly erroneous inclusion. ECF 68, ¶ 3. The Caseros, however, wish to depose the McNulty neighbors, and seek to compel the McNultys' counsel “to cooperate in scheduling depositions of the neighbors.” ECF 65 at 3.


         Though the McNultys' claims invoke the Court's diversity jurisdiction, ECF 11, ¶¶ 1-6, the Court applies federal procedural rules, see, e.g., Chartis Prop. Cas. Co. v. Huguely, 243 F.Supp.3d 615, 622 (D. Md. 2017). Local Rule 104.7 and Federal Rule of Civil Procedure 37 require that counsel confer regarding discovery disputes and make a good faith effort to settle disputes without court intervention. Loc. R. 104.7 (D. Md. 2018); Fed.R.Civ.P. 37(a)(1). This Court will not contemplate discovery motions unless the moving party files a certificate either: (1) reciting the date, time, and place of the discovery conference between the parties, and the names of the participants therein, or (2) certifying that the parties attempted to hold a conference but were unsuccessful. Loc. R. 104.7. Additionally, Local Rule 104.8 provides, in relevant part:

If a party who has propounded interrogatories . . . is dissatisfied with the response to them and has been unable to resolve informally . . . any disputes with the responding party, that party shall serve a motion to compel within thirty (30) days of the party's receipt of the response. . . . The parties shall serve motions and memoranda under L.R. 104.8 in accordance with Fed.R.Civ.P. 5(a) and shall not serve them through the Court's electronic filing system nor file with the Court notices of service of the motion or memoranda.

Loc. R. 104.8(a). Local Rule 104.8 also requires that the parties “hold [a] conference required by L.R. 104.7 after serving upon one another all of the documents relating to the motion to compel.” Loc. R. 104.8(b).

         The party resisting discovery generally carries the burden to “clarify and explain precisely why its objections are proper given the broad and liberal construction of the federal discovery rules.” United Oil Co. v. Parts Ass'n, 227 F.R.D. 404, 411 (D. Md. 2005). Thus, because the McNultys assert that their neighbors should not be subpoenaed for depositions, they carry the burden to demonstrate why such depositions are outside the scope of discovery. See id.; Nat'l Credit Union Ass'n v. First Union Capital Mkts. Corp., 189 F.R.D. 158, 161 (D. Md. 1999) (quoting Spell v. McDaniel, 591 F.Supp. 1090, 1114 (E.D. N.C. 1984)); see also Hake v. Carroll County, No. WDQ-13-1312, 2014 WL 3974173, at *5 (D. Md. Aug. 14, 2014) (stating that the party opposing a motion to compel carried the burden “to establish that the information is not relevant, or that the discovery request should be denied”).

         III. ANALYSIS

         A. Compliance with Local Rules

         As an initial matter, the Court notes that Defendants' Motion to Compel fails to fully comply with this Court's rules governing discovery disputes. As discussed above, Local Rule 104.8 provides the procedure which “shall be followed in litigating motions to compel.” Loc. R. 104.8(a) (emphasis added). First, should a requesting party receive responses to interrogatories or requests for production that are “dissatis[factory], ” the requesting party “shall serve a motion to compel within thirty (30) days of the party's receipt of the response.” Id. This does not mean that the motion must be filed with the Court within thirty days. Rather, the motion (and accompanying memoranda) must be served upon the other party in accordance with Federal Rule of Civil Procedure 5(a). Id. Once the motion to compel is served upon the responding party, the responding party has fourteen (14) days to serve a response upon the moving party, and the moving party then has fourteen (14) days to serve a reply. Id.

         Even after this, however, the parties are not entitled to file their pleadings with the Court. Rather, if service of the papers does not lead to a resolution of the dispute, then “counsel must hold the conference required by L.R. 104.7.” R. 104.8(b) (emphasis added). Counsel must meet and confer with one another “and make sincere attempts to resolve the differences between them.” R. 104.7; see also Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 357-58, 365 (D. Md. 2008) (discussing the meet and confer requirement); Loc. R. App. A., Discovery Guideline 1.d (“Cooperation and communication . . . are an obligation of counsel.”). If the parties again fail to reach an agreement, only then can the parties involve the Court in the dispute. See R. 104.8(c)(i); see also Jayne H. Lee, Inc. v. Flagstaff Indus. Corp., 173 F.R.D. 651, 655 (D. Md. 1997) (reciting Local Rule 104.8 procedures). In addition to copies of the motion and relevant memoranda previously served between the parties, the moving party “shall file the certificate required by L.R. 104.7.” R. 104.8(c)(i). That certificate must either: (1) recite the date, time, and place of the discovery conference between the parties, and the names of the participants therein, or (2) certify that the parties attempted to hold a conference but were unsuccessful. R. 104.7.

         However, just because a party fails to comply with Local Rules 104.7 and 104.8 does not per se require dismissal of their motion to compel. See Tucker v. Ohtsu Tire & Rubber Co., Ltd., 191 F.R.D. 495, 497 (D. Md. 2000) (“[A]n absolute rule requiring [dismissal] without first determining whether the opposing party would suffer any real prejudice if the motion is granted would be too harsh a construction of the local rule.” (citing Fed.R.Civ.P. 1)); see also Blind Indus. & Servs. of Md. v. Route 40 Paintball Park, No. WMN-11-3562, 2012 WL 4470273, at *1-2 (D. Md. Sept. 26, 2012).

         Here, Defendants complied with Local Rule 104.7, as the required certificate is attached to their Motion. ECF 65 at 4. However, there is no indication that Defendants complied with the service procedures laid out in Rule 104.8. Given this case's unique procedural posture, and the fact that Plaintiffs consented to reinstating this Motion, ECF 116, the Court cannot find any prejudice to Plaintiffs in considering the Motion. Moving forward, the Court ...

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