UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

SARATOGA POTATO CHIP COMPANY, )

INC., also known as Old York Potato Chips, )

et al., )

)

Plaintiffs, )

)

v. ) CAUSE NO. 1:12-cv-00452-JVB-SLC

)

CLASSIC FOODS, INC., et al., )

)

Defendants. )

OPINION AND ORDER

Before the Court is a Motion to Compel (DE 104) filed on July 5, 2016, by Plaintiffs

Saratoga Potato Chip Company, Inc., also known as Olde York Potato Chips, and Saratoga Potato

Chips, LLC (together, “Saratoga”), seeking to compel Defendant Balance Foods, Inc.

(“Balance”), to supplement its November 4, 2014, responses to Saratoga’s First Set of

Interrogatories and Requests for Production of Documents. Balance has not filed a response to

the motion, and the time to do so has now passed. For the following reasons, Saratoga’s motion

will be GRANTED. 

A. Factual and Procedural Background

 Saratoga filed this breach of contract action against Defendants Classic Foods, Inc.

(“Classic”), and Cuetara Holdings, Inc. (“Cuetara”), in October 2012, asserting that Classic and

Cuetara failed to pay approximately $368,646.56 for snack foods ordered from Saratoga and

failed to make payments under an August 2012 agreement settling a prior lawsuit filed by

Saratoga on the matter. (DE 1). In April 2014, the parties stipulated to a judgment against

Classic in the amount of $368,646.56, which the Court granted. (DE 57). 
In June 2014, Saratoga filed a supplemental pleading, seeking to add Balance as a

defendant liable for Classic’s debt under theories of alter ego and successor liability. (DE 63). 

Saratoga asserted that it had recently discovered that Classic transferred, without notice to

Saratoga, all of its assets to Balance in an effort to render Classic judgment proof in this suit. 

(DE 64). The Court granted Saratoga’s motion to amend (DE 68), and Saratoga filed its

supplemental complaint adding Balance as a Defendant (DE 69).

On September 9, 2014, Saratoga served its First Set of Interrogatories and Requests for

Production on Balance. (DE 104 ¶ 1; DE 104-1). After failing to meet its promised due date

several times, Balance eventually served its discovery responses on Saratoga on November 4,

2014. (DE 104 ¶ 7; DE 104-7). Saratoga, however, contends that Balance’s discovery responses

omitted a substantial amount of requested information and documents. (DE 104 ¶ 8). Saratoga’s

counsel has corresponded with Balance’s counsel on several occasions, requesting that Balance

supplement its discovery responses. (DE 104 ¶¶ 9-10, 19). To date, Balance has not done so. 

This case was automatically stayed with respect to Balance from October 29, 2015,

through May 4, 2016, due to Balance’s filing for bankruptcy. (DE 97; DE 102). When notifying

the Court concerning the bankruptcy, Balance’s counsel also filed a motion to withdraw, which

the Court denied. (DE 95; DE 97). At a status conference on May 4, 2016, the bankruptcy case

having been terminated and the automatic stay lifted, Balance’s counsel advised the Court that it

anticipated filing a motion to dismiss or a motion to transfer by June 15, 2016. (DE 102). No

such motion, however, was filed by that date. 

On June 14, 2016, Balance’s counsel filed a second motion to withdraw, which remains

pending. (DE 103). In that motion, counsel represents that Balance has failed to respond to

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counsel’s communications and has failed to pay for counsel’s services, and that counsel’s only

recent contact with Balance has been with its bankruptcy attorney. (DE 103 ¶ 4). 

On July 5, 2016, Saratoga filed the instant motion to compel, asking that the Court order

Balance to supplement its November 4, 2014, discovery responses. (DE 104). Saratoga’s

counsel states in the motion that he contacted Balance’s attorney, who responded that he had

already disclosed all of the discovery responses that Balance had provided to him. (DE 104 ¶ 19). 

As stated earlier, Balance has not filed a response to the motion to compel. 

B. Applicable Law

Federal Rule of Civil Procedure 37 permits a party to file a motion to compel discovery

upon “evasive or incomplete disclosure, answer, or response.” Fed. R. Civ. P. 37(a). Together

with the motion to compel, a party must file “a separate certification that the party has conferred

in good faith or attempted to confer with the other affected parties in an effort to resolve the

matter raised in the motion without court action.” N.D. Ind. L.R. 37-1(a); see Fed. R. Civ. P.

37(a)(1). “A motion to compel discovery pursuant to Rule 37(a) is addressed to the sound

discretion of the trial court.” Redmond v. Leatherwood, No. 06-C-1242, 2009 WL 212974, at *1

(E.D. Wis. Jan. 29, 2009) (citation omitted). 

C. Discussion

The Court finds that Saratoga has adequately attempted to confer in good faith with

Balance in an effort to resolve this matter without Court action. (DE 105; DE 104-7; DE 104-8);

see Fed. R. Civ. P. 37(a)(1); N.D. Ind. L.R. 37-1(a). Balance, however, has not responded to 

Saratoga’s request that Balance supplement its initial discovery responses, nor has Balance

responded to the instant motion to compel. 

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A review of the motion to compel and its attachments indicates that Saratoga’s request

that Balance supplement its prior discovery responses (DE 104-7) is appropriate, as many of

Balance’s answers or responses appear incomplete. See Fed. R. Civ. P. 26(b)(1) (permitting

discovery into “any nonprivileged matter that is relevant to any party’s claim or defense and

proportional to the needs of the case . . . .”). Consequently, the Court will GRANT the motion to

compel (DE 104) and order Balance to supplement its answers to Saratoga’s First Set of

Interrogatories and Requests for Production (DE 104-6; DE 104-7). 

To the extent that Balance believes it has already produced all documents responsive to a

particular document request, Balance is to file an affidavit or declaration, signed by its executive

officer, (1) stating that after diligent search, it has no responsive documents in its “possession,

custody, or control” other than those already produced, Bitler Inv. Venture II, LLC v. Marathon

Ashland Petroleum, LLC, No. 1:04-cv-477, 2007 WL 1164970, at *5 (N.D. Ind. Apr. 18, 2007);

and (2) describing, with particularity, its efforts to locate any responsive documents, Traveler v.

CSX Transp., Inc., No. 1:06-CV-56, 2007 WL 433530, at *2 (N.D. Ind. Feb. 6, 2007). The

affidavit must be filed with respect to each document request for which Balance believes it has

already produced all responsive documents. 

D. Conclusion

For the foregoing reasons, Saratoga’s Motion to Compel (DE 104) is GRANTED. 

Balance is ORDERED to supplement its answers and fully respond to Saratoga’s First Set of

Interrogatories and Requests for Production (DE 104-6; DE 104-7) on or before August 29, 2016,

including, if necessary, filing an affidavit as described herein. 

SO ORDERED. Entered this 15th day of August 2016. 

/s/ Susan Collins 

Susan Collins,

United States Magistrate Judge

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