United States District Court, D. Maryland
JOHN S. MCNULTY, ET AL., Plaintiffs,
ROBERT A. CASERO, JR., ET AL., Defendants.
Stephanie A. Gallagher, United States District Judge
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.
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.
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.
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).
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.
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.
the Court is the Caseros' Motion to Compel, ECF 65. The
Caseros assert that, after receiving no correspondence from
the McNultys' counsel,  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.
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
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
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).
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
Compliance with Local Rules
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.
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.
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).
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 ...