UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

L. H. H., a minor, by and through his )

mother and next friend, ESMERALDA )

HOLMAN HERNANDEZ, )

Plaintiff, )

)

v. ) Cause No.: 2:13-CV-452-PRC

)

GERALD HORTON, ANGELO BRADSHAW, )

CITY OF GARY, INDIANA, and GARY )

COMMUNITY SCHOOL CORPORATION, )

Defendants. )

OPINION AND ORDER

This matter is before the Court on Plaintiff’s Second Motion to Compel and for Rule 37

Sanctions against Defendants Horton and Gary Community School Corporation [DE 47], filed on

March 24, 2015. No response has been filed, and the time to do so has passed. 

On December 2, 2014, this Court ordered Defendants to provide Plaintiff with complete

responses to a number of his written discovery requests. Despite this Order, as well as numerous

subsequent informal attempts by Plaintiff’s attorney to get these documents, Defendants Horton and

Gary Community School Corporation (“the School”) have not provided him with complete

responses to his interrogatories. The School’s responses to his requests for production, moreover,

are implausible; they consistently deny that the School has documents relating to this case. For

example, in response to a request for “[a]ll documents which support or relate to any of your

responses to any of Plaintiff’s Interrogatories and any Requests to Admit in this Case” the School

responded “Defendants have none.” DE 47-1 at 10. 

Plaintiff asks that Defendants Horton and the School be ordered to provide him with

complete responses to his interrogatories and that the School be ordered to provide him with an
affidavit from a control group member of the School stating that it has no documents responsive to

his requests for production.

 The Court finds this motion well taken in the main under Federal Rule of Civil Procedure

37, especially in light of Defendants’ failure to respond to this motion. See N.D. Ind. L.R. 7-1(d)(4)

(“The court may rule on a motion summarily if an opposing party does not file a response before the

deadline.”). The Court therefore GRANTS with relief different than requested Plaintiff’s Second

Motion to Compel and for Rule 37 Sanctions against Defendants Horton and Gary Community

School Corporation [DE 47]. 

With respect to the interrogatories, the Court ORDERS

(1) that the School answer the interrogatories served upon it

through an authorized employee or employees who can

provide all the information known to it and

(2) that Defendant Horton provide a sworn answer to Plaintiff’s

Interrogatory No. 7.

With respect to the requests for production, the Court FINDS that the responses are incomplete

under Federal Rule of Civil Procedure 34. That Rule requires the producing party to provide all

documents in its “possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). “[F]ederal courts have

consistently held that documents are deemed to be within the ‘possession, custody or control’ for

purposes of Rule 34 if the party has actual possession, custody or control, or has the legal right to

obtain the documents on demand.” United States v. Approximately $7,400 in U.S. Currency, 274

F.R.D. 646, 647 (E.D. Wis. 2011) (quoting Walls v. Paulson, 250 F.R.D. 48, 50 (D.D.C. 2008)

(citing In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995); Kifle v. Parks & History Ass’n,

No. Civ. A. 98–00048, 1998 WL 1109117, at *1 (D.D.C. Oct. 15, 1998))). The refrain “Defendants

have none” leaves the Court with significant doubts—especially in light of the responses’

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implausibility at many points—about whether the requested documents might be within the School’s

custody or control but not in its physical possession. Accordingly, the Court ORDERS the School

to perform a diligent search of its records and documents in its possession, custody, or control and

to provide complete responses to Plaintiff’s requests for production. It may well be that the School

again says that it does not have these documents. Of course, this Court “cannot compel a party to

disclose that which it does not have.” Slabaugh v. LG Electronics U.S.A., Inc., No.

1:12-CV-01020-RLY-MJ, 2015 WL 420012, at *3 (S.D. Ind. Jan. 30, 2015). But “if it comes to light

that any such responsive documents do exist,” the School and its attorneys “would be exposing

themselves . . . to sanctions pursuant to Rules 11 and 37 of the Federal Rules of Civil Procedure.”

Id. Morever, failure to comply with this Order may also result in sanctions under Federal Rule of

Civil Procedure 37(b). 

The Court also AWARDS Plaintiff reasonable costs and attorney fees incurred in bringing

this motion. See Fed. R. Civ. P. 37(a)(5). The Court DIRECTS Plaintiff’s attorney to file an

affidavit of fees and costs by April 27, 2015. A response may be filed no later than May 7, 2015.

If a response is filed, Plaintiff may file a reply by May 14, 2015. These briefs shall deal solely with

the amount of fees. Argument about any other issue or any attempt to make a motion within these

briefs will be disregarded. 

One final matter remains. Exhibit A to Plaintiff’s motion includes Plaintiff’s first and last

name. Plaintiff is a minor, and Federal Rule of Civil Procedure 5.2 provides that, “[u]nless the court

orders otherwise, in [a filing] that contains . . . the name of an individual known to be a minor, the

filing may only contain . . . the year of the individual’s birth [and] the minor’s initials.” Fed. R. Civ.

P. 5.2(a). The filing violates this Rule, and the Court accordingly DIRECTS the Clerk of Court to

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SEAL Exhibit A. The Court ORDERS Plaintiff to file a redacted version of this exhibit no later

than April 27, 2015.

SO ORDERED this 21st day of April, 2015.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

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