Bing Materials v. Secretary of Labor and Secretary of Labor v. Bing Materials

Plain-English summary

Bing Materials contested four enforcement actions involving alleged crane defects, missing task training, intoxicating beverages near the mine office, and missing new-miner training. In discovery, Bing served 42 interrogatories and moved to compel answers to all of them. Judge William B. Moran applied the federal rule's presumptive limit of 25 because the Commission's rules do not set another number. He held that Bing's generalized reliance on the citations' gravity and negligence designations did not show a particularized need for each additional question. The judge denied the motion and directed Bing to select 25 questions before seeking permission for any more.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 46.5(a), 46.7(a), 56.14100(b), and 56.20001
• Outcome: Bing's motion to compel answers to all 42 interrogatories was denied.
• Key point: A party seeking more than 25 interrogatories must show a particularized need for each additional question, not rely on a blanket claim that the case is unusually serious.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, NW, Suite 520N

Washington, DC
20004-1710

Phone: (202) 434-9933
| Fax: (202) 434-9949

February 22, 2017

BING MATERIALS                                            :     CONTEST
PROCEEDINGS

Contestant,                        :

:     Docket
No. WEST 2016-514-RM

:     Order
No. 8989250; 05/11/16

v.                                                   :

:     Docket
No. WEST 2016-515-RM

SECRETARY
OF LABOR,                                :     Order No. 8989249; 05/11/16

MINE
SAFETY AND HEALTH                      :       

ADMINISTRATION
(MSHA),                        :     Docket No. WEST 2016-516-RM

Respondent.                      :     Order
No. 8989248; 05/10/16

:                

:     Docket
No. WEST 2016-517-RM

:     Citation
No. 8989247; 05/10/16

:

:     Mine:
Bing Materials

:     Mine
ID: 26-00430

SECRETARY
OF LABOR,                                :     CIVIL PENALTY PROCEEDING

MINE
SAFETY AND HEALTH                      :   

ADMINISTRATION
(MSHA),                        :     Docket No. WEST 2017-0068

Petitioner,                          :     A.C.
No. 26-00430-422508

:    

v.                                                   :    

:    

BING
MATERIALS,                                           :

Respondent.                      :     Mine:
Bing Materials

:    

ORDER DENYING MOTION TO COMPEL

Before: Judge
Moran

On
January 30, 2017, Respondent Bing Materials (hereinafter “Bing” or
“Respondent”) filed a Motion to Compel the Secretary to answer the Respondent’s
First Set of Interrogatories (“First Interrogatories’) in this matter. On
February 6, 2017 the Secretary filed a response in opposition. For the reasons
that follow, as Respondent’s First Interrogatories makes 42 inquiries, not the
presumptive 25, the Respondent’s motion is DENIED .

Background

For
context, the Court briefly summarizes the four matters at issue in this litigation.
Each matter involved the same mine, “Bing Materials,” and each was issued by
the same MSHA Inspector, Kimberly Hakala. In sequence, they began with a
section 104(d)(1) citation issued on May 10,2016, Citation No. 8989247,
involving numerous alleged safety defects on a crane, in violation of 30 C.F.R.
§56.14100(b). Next was a section (d)(1) order, No. 8989248 issued the same day,
shortly after the aforementioned citation. That Order alleged a failure to
provide new task training for the operator of the same crane identified in the (d)(1)
citation, in violation of 30 C.F.R. §46.7(a). The following day, May 11, 2016, Bing
was issued another (d)(1) order, No. 8989249, alleging a violation of the
standard prohibiting intoxicating beverages in or around the mine’s office, in
violation of 30 C.F.R. §56.20001. Later that same day, a third (d)(1) order was
issued to the mine, Order No. 8989250, alleging that the mine owner had not
received required new miner training, per 30 C.F.R. §46.5(a).  

Respondent
served the Secretary with its First Interrogatories regarding Penalty Docket
No. WEST 2017-0068 on December 5, 2016. [1]
The First Interrogatories presents 42 questions. [2]
 The Secretary indicated that it did not intend to answer more than 25
interrogatories on the grounds that parties before the Commission are
presumptively limited to serving 25 interrogatories upon an opposing party by
Rule 33(a)(1) of the Federal Rules of Civil Procedure. [3]
Although the parties attempted to resolve their discovery dispute through a
discussion on January 6, 2017, they have not been able to reach an agreement on
this matter. The Secretary has objected to each of Bing’s interrogatories, employing
identical language in summarizing its dispute – that parties are limited to 25
interrogatories, absent the opposing party’s agreement to answer more than that
number or upon leave of the Court allowing additional interrogatories, neither
of which has occurred in this litigation.

As
noted by both parties, the Commission’s Procedural Rules do not directly
address the issue of if and when a party may serve its opponent with more than
25 interrogatories. Absent clear direction from the Procedural Rules, the Court
is “guided so far as practicable by the Federal Rules of Civil Procedure.” 29
C.F.R. § 2700.1(b). As the Respondent acknowledges, Procedural Rule 1(b)
affords the Commission discretion to decide the extent to which it will be
guided by the Federal Rules of Civil Procedure. Respondent’s Motion at 4,
citing Rushton Mining Co. , 11 FMSHRC 759, 765 (May 1989). In its Order
in Kirk Fenoff , this Court addressed a similar motion from a party seeking
to compel a response to more than 25 interrogatories. Kirk Fenoff & Son
Excavating , 36 FMSHRC 3339 (Dec. 2014) (ALJ Moran). In that instance, the
Court found that the moving party must present “a particularized need for each additional
interrogatory beyond the permitted maximum of 25.” Id . at 3343. This
showing is required to balance the moving party’s interest in broad disclosure
against the countervailing considerations of undue burden, expense, or delay.

Bing
alleges that all 42 interrogatories are “warranted” on the basis that
the citations and orders at issue were designated by MSHA as S&S, high
negligence, and reasonably likely to lead to a fatal injury, making these “not
run-of-the-mill enforcement actions.” Respondent’s Motion to Compel at 5-6. The
Court is not persuaded by Bing’s attempt to differentiate the circumstances in Kirk
Fenoff from those at issue here. [4]
The designations it refers to are not unusual in citations or orders issued
under the Mine Act. The Respondent may not gain a “blanket” approval of some 17
additional interrogatory questions with vague and generalized assertions of
necessity.

On
the topic of burden, Bing alleged that the Secretary will not face an undue
burden if required to respond to its interrogatories — because the Secretary
has had notice of Bing’s intention to contest the four citations and orders at
issue for several months. The Secretary replied that answering all of the
interrogatories will require a duplicative effort on the part of MSHA
Investigator Hakala, who will soon be deposed on the same subject matter at
issue in the interrogatories. Secretary’s Response to Bing Materials’ Motion to
Compel at 9. Further , the extent of time that has elapsed since the
Secretary had notice of the Respondent’s intention to contest the enforcement
actions at issue is not a recognized basis for an exception to the presumptive
25 interrogatory limit.

The
procedure to be employed is for the Respondent to identify its 25 questions by
interrogatory and then await the responses to those. Thereafter, upon
evaluating the responses, if the Respondent believes it is warranted, it may
seek leave to propound additional interrogatories. In that event the Secretary
will then have an opportunity to respond to such requests and the Court will
then rule upon those issues.

Accordingly,
for the reasons stated, the Respondent’s Motion is DENIED .

So
ORDERED .

/s/ William B. Moran

William B. Moran

Administrative
Law Judge

Distribution:

Jason
Nutzman, Counsel for the Respondent, 707 Virginia Street East, Suite 1300,
Charleston, WV 25301, [email protected]

Isabella
Finneman, Senior Trial Attorney, Office of the Solicitor, U.S. Department of
Labor, 90 Seventh Street, Suite 3-700, San Francisco, CA 94103, [email protected]

[1] This Order only
addresses the “First Interrogatories,” which were filed in connection with WEST
2017-0068. On January 7, 2017, the Respondent then separately served the
Secretary with its First Set of Interrogatories for each of the associated
contest proceedings ; 18 interrogatories for Contest Docket No. WEST
2016-0514-RM; 19 interrogatories for Contest Docket No. WEST 2016-0515-RM; 12
interrogatories for Contest Docket No. WEST 2016-0516-RM; and 19
interrogatories WEST 2016-0517-RM. The four contests involve the same citation
and orders set forth in the civil penalty proceeding and the contest interrogatories
appear to be essentially redundant to those presented in the “First Interrogatories”
for the civil penalty proceeding addressed in this Order, WEST 2017-0068. On
January 18, 2017, the Secretary filed a Motion to Consolidate the four contest
proceedings and the civil penalty proceeding, as set forth in the caption. An
Order, granting consolidation, was issued by the Court on February 3, 2017.

[2] A few of the 42
interrogatories have subparts. In calculating the limit of 25 written
interrogatories, discrete subparts are counted as separate questions. The term “discrete
subparts” has been interpreted “as meaning that ‘interrogatory subparts are to
be counted as one interrogatory ... if they are logically or factually subsumed
within and necessarily related to the primary question.’” Safeco of America ,
181 F.R.D. 441 (1998) quoting Kendall v. GES Exposition Services, Inc .,
174 F.R.D. 684, at 685 (D.Nev.1997) (“ Kendall ”), in turn quoting Ginn
v. Gemini , Inc . 137 F.R.D. 320, 322 (D.Nev.1991). Another expression
of the test is “to examine whether the first question is primary and subsequent
questions are secondary to the primary question. Or, can the subsequent
question stand alone? Is it independent of the first question?” Kendall at
685.

[3] F.R.C.P. Rule
33, “Interrogatories to Parties,” provides in relevant part, “Unless otherwise
stipulated or ordered by the court, a party may serve on any other party no
more than 25 written interrogatories, including all discrete subparts. Leave to
serve additional interrogatories may be granted to the extent consistent with
Rule 26(b)(1) and (2).”

[4] As the
Secretary correctly points out and, as the summary above notes, the four alleged
violations at issue in these consolidated cases are not all factually
independent from one another. Although they do allege violations of different
standards under the Mine Act, the Secretary has asserted that there will likely
be common issues of fact because the alleged violations concern the same mine,
the same management, and a single inspection that took place during two
consecutive days in May 2016. There is no basis, if Respondent is suggesting
it, that 25 interrogatories may be propounded for each citation or order.