If a plaintiff has not filed an answerto my request for discovery, what now?
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If a plaintiff has not filed an answerto my request for discovery, what now?
I’m being sued by a debt collector (not original creditor). I’m now in discovery. The plaintiff did not response to my request for discovery (Request to Produce, Request for Admissions, and Interrogatories) within the time allowed by law, so I send them a letter requesting them to produce the documents and notifying them of my intent to file a motion to compel. The Plaintiff as a response to my letter, filed a Motion to Relief from Technical Admission but has not produced any documents or answered my interrogatories. Also, after they file their Motion of Relief from Technical Admission, they sent me their Request for Discovery, which I still have about 3 weeks left to summit my answers. Should I still file a Motion to Compel? And could I also file a Motion to Strike? Would I have a chance to have the case dismiss if I file a Motion for Summary Judgment?
Asked on December 23, 2011 under Bankruptcy Law, Florida
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 12 years ago | Contributor
One option is to try filing a motion to strike their complaint for failure to provide discovery; also file another motion in the alternative, to compel discovery (you can submit alternative motions to the court--i.e. a "back up" motion for the court if they don't grant your primary one). In my experience, it is somewhat unlikely that you will be able to get their complaint stricken--courts do not like that remedy--but it's not impossible and its definitely worth trying.
A different option, since the time for discovery has passed, if you feel that they have not to date provided evidence supporting their claim, you could try a motion for summary judgment. The advantage of this motion is that if you win on it, you win completely--whereas if the plaintiff's complaint is struck as per the above, it would most likely be a dismissal without prejudice, giving them the opportunity to refile. The disadvantage of the motion for summary judgment route is that if they have provided anything (e.g. as part of or attached to their complaint) which establishes the debt, you are very unlikely to win--it does not take much evidence to defeat a motion for summary judgment.
You could also first file the motion to strike (and, in the alternative, to compel), then subsequently try a motion to summary judgment. However, if you file the former motions and the matter is not dismissed, it's likely they will respond by providing discovery, which would likely provide enough evidence to doom a motion for summary judgment unless they really don't have a case at all.
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