Standard Acc. Ins. v. Home Indemnity Co.
STANDARD ACC. INS. CO. OF DETROIT v. HOME INDEMNITY CO. OF NEW YORK
- Proceeding
- district
- Area
- civil
- Panel
- Connor (author)
Analysis
The court considered a motion to compel answers to interrogatories that were served by the plaintiff prior to the defendant filing its answer. The court sustained the defendant's objection, ruling that interrogatories served before the answer is filed require leave of court, and denied the motion without prejudice to renewal after the issue is joined.
| What the court decided | The model |
|---|---|
Motion to compel answers to pre-answer interrogatories denied“The objection is good. ... Rul-bert sustained a similar motion without prejudice to renew after issue joined.” | agree with court The court correctly applied the procedural rule prevailing at the time (pre-1970 amendments) that interrogatories served prior to the filing of an answer required leave of court. The order cites *Musher Foundation* and *Sheldon* to support this proposition. The court also noted that the early service resulted in inefficiency, as many questions were answered in the subsequent answer. The denial without prejudice allows the plaintiff to re-serve or renew the motion after the answer is filed, which is a standard and equitable remedy for premature discovery. |
The order itself: sound — The order is procedurally sound for its time. It correctly identifies the procedural defect (service before answer) and applies the then-binding local and federal practice rules (Rule 33 pre-1970) which required leave of court for pre-answer discovery. The court’s reasoning regarding judicial efficiency and the redundancy of the questions answered in the answer further supports the denial. The order is concise but sufficient to resolve the specific procedural objection raised.
Opinion — Connor
J. P. T. O’CONNOR, District Judge.
The plaintiff filed its complaint for declaratory relief in this court on September 4, 1946, and on September 6, 1946, filed its proposed “Interrogatories to Defendant” under Rule 33, R.C.P., 28 U.S.C.A. following section 723c.
The answer of the Home Indemnity Company of New York was filed on September 24, 1946; thus, the proposed interrogatories were filed prior to the filing of the answer by the defendant corporation. The defendant corporation objects to answering the interrogatories before answer has been served except by leave of court. The objection is good. Musher Foundation, Inc., v. Alba Trading Co., Inc., 1941, D.C.,S.D.N.Y., 42 F.Supp. 281. Judge Rul-bert sustained a similar motion without prejudice to renew after issue joined. Stewart-Warner Corp. v. Staley, D.C., 2 F.R.D. 199, Sheldon v. Great Lakes Transit Corp., D.C., 2 F.R.D. 272. Judge Knight held in the Sheldon case that if interrogatories were served prior to answer, leave of court must be obtained. 2 Moore’s Federal Practice, 2621.
In the action pending in this court, sixty-six interrogatories were propounded, contained in eleven pages. A number of the interrogatories were answered when the answer was filed, obviating the necessity for passing upon these questions. Several of the interrogatories are repetitious, while others request hearsay information, and others border on what is known as a fishing expedition.
The wisdom of the rule to deny interrogatories prior to issue joined, without leave of court, is exemplified .in this action. Why should the court take up its time in examining carefully the proposed interrogatories which are answered later when the answer is filed? To encourage such a practice would delay thé work of the court and would establish a bad practice.
*219While Rule 33, R.C.P., provides: party may, without leave of court, serve more than one set of interrogatories to be answered by the same party”, the court, to avoid unnecessary effort and time expenditure on the part of counsel, will permit interrogatories to be filed by plaintiff in accordance with this opinion. No It is so ordered.