# Hopfinger v. City of Nashville, Illinois

> District Court, S.D. Illinois · March 11, 2020

URL: https://www.frixlaw.com/law-library/cases/10151712

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** March 11, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MELISSA HOPFINGER,
Plaintiff,
v. Case No. 3:18-CV-1523-NJR
CITY OF NASHVILLE, ILLINOIS,
BRIAN FLETCHER, ERIC ROLF,
JOSH FARK, SUE FINKE,
TERRY KOZUSZEK,
DOUG HARGEN, KELLY SHERIDAN,
and DENNIS KELLERMAN,
Defendants.
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Pending before the Court is the Request to Determine Sufficiency of Responses to
Requests for Admissions as to All Defendants (Doc. 75) and the Motion to Compel
(Doc. 84) filed by Plaintiff Melissa Hopfinger. The Motion to Compel is directed to
Defendants City of Nashville, Eric Rolf, Josh Fark, Sue Finke, Terry Kozuszek, Doug
Hargen, Kelly Sheridan, and Dennis Kellerman (Doc. 84). For the reasons set forth below,
the Court overrules in part and sustains in part Defendants’ objections to Hopfinger’s
Requests for Admissions. The motion to compel is denied.
I. Request to Determine Sufficiency of Responses to Requests for Admissions as
to All Defendants
With this motion, Hopfinger asks the Court to deem admitted Defendants’
responses to Request Nos. 1, 2, 3, 4, 5, 7, 14, 15, 16, 17, 18, 19, 20, 21, 22, and 26 because
their objections are insufficient.
A. Reasonable Inquiry Under Rule 36(a)(4)
Hopfinger first argues that Defendants improperly objected to Requests 1, 2, 3, 4,
5, 14, 15, 17, 18, 19, and 20 when they claimed they did not have to make a reasonable
inquiry into those requests. Specifically, Defendants’ objection to those requests stated:

Defendant objects to this request. While an answering party is obligated to
undertake a “reasonable inquiry,” that obligation is usually “limited to
review and inquiry of those persons and documents that are with the
responding parties’ control.” Hanley v. Como Inn Inc., 2003 WL 198907, *2
(N.D. Ill. Apr. 28, 2003). An answering party “is not generally required to
question unsworn third parties about the genuineness of the documents
they produced.” Id.

Under Rule 36(a)(4), however, a party may only assert lack of knowledge or
information as a reason for failing to admit or deny a request if the party “states that it
has made reasonable inquiry and that the information it knows or can readily obtain is
insufficient to enable it to admit or deny.” FED. R. CIV. P. 36(a)(4). Because Defendants’
objection is legally improper, Hopfinger argues, the above-referenced requests should be
deemed admitted.
In response, Defendants first note that, under Rule 36(a)(6), if a court finds an
objection unjustified, “it must order that an answer be served.” FED. R. CIV. P. 36(a)(6).
Then, on finding that an answer does not comply with Rule 36, the Court may either find
that the matter is admitted or that an amended answer must be served. Id. Thus, the Court
only has authority, at this point, to order that an answer be served—not to deem its
objections as admissions.
Furthermore, they argue, “[a] party is not generally required to question unsworn
third parties.” Hanley v. Como Inn, Inc., No. 99 C 1486, 2003 WL 1989607, at *2 (N.D. Ill.
Apr. 28, 2003). Here, the requests for admissions focus on information created by and
documents issued by the Illinois Municipal Retirement Fund (IMRF), which is a non-
party. For example, Request No. 2 seeks an admission that “Plaintiff’s 2016 Pension

Statement provides that her estimated monthly pension would be $2,105.” The IMRF
issued that Pension Statement, however, not Defendants. Therefore, only IMRF should
be able to verify that information.
Finally, with regard to any requests to admit the genuineness of documents that
Hopfinger produced, Rule 36 does not require Defendants to “reasonably inquire” into
the genuineness of Hopfinger’s own documents. Id. Likewise, they argue, Rule 36 does

not require them to admit to the genuineness of documents produced by the IMRF.
Whether an inquiry is reasonable depends on the facts of the case. Id. Generally, a
“reasonable inquiry is limited to review and inquiry of those persons and documents that
are within the responding party’s control.” Id. “However, under certain circumstances,
parties may be required to inquire of third parties to properly respond to requests for

admissions.” Whole Woman’s Health All. v. Hill, No. 118CV01904SEBMJD, 2020 WL
1028040, at *5 (S.D. Ind. Mar. 2, 2020); Loudermilk v. Best Pallet Co., LLC, No. 08 C 06869,
2009 WL 3272429, at *1 (N.D. Ill. Oct. 8, 2009) (“A ‘reasonable inquiry’ may also require
the responding party to consult third parties.”).
In Whole Woman’s Health Alliance, the court found a third-party inquiry appropriate

where the defendants regulated, inspected, and licensed the third parties, thereby
providing the defendants with access to the facilities and necessary documents without
unreasonable expense or effort. Id. In Brown v. Overhead Door Corp., the court found the
defendant’s objection insufficient where it did not meet its burden of showing that its
lack of knowledge was the result of a reasonable inquiry of its own hired expert. Brown
v. Overhead Door Corp., No. 06 C 50107, 2008 WL 4614299, at *3 (N.D. Ill. Oct. 16, 2008).

In this case, presumably Defendants have some relationship with the IMRF as the
administrator of its employees’ retirement benefits. Thus, although Defendants have no
legal control over the IMRF, they could and should have made a reasonable inquiry of
the IMRF in order to properly respond to Hopfinger’s requests. The Court is not
persuaded by Defendants’ argument that Hopfinger is overreaching into the “legal
province of the IMRF” simply because the admissibility of IMRF calculations at trial

would require expert witness testimony. See Hall v. Sterling Park Dist., No. 08 C 50116,
2012 WL 1050302, at *4 (N.D. Ill. Mar. 28, 2012).
Accordingly, pursuant to Rule 36(a)(6), the Court OVERRULES Defendants’
objections and ORDERS Defendants to make such reasonable inquiry as to Request Nos.
2, 3, 5, 14, 15, 17, 18, 19, and 20. Defendants shall amend their answers to Hopfinger’s

requests for admissions by April 10, 2020. If Defendants still lack knowledge sufficient to
admit or deny any part of the requests, the Court orders Defendants to describe in detail
the reasonable inquiry in which they engaged. The Court declines to deem the requests
to be admitted at this time. Defendants need not amend their responses to Request Nos.
1 and 4, as they are not required to inquire into the genuineness of Plaintiff’s own

documents. Hanley, 2003 WL 1989607, at *2.
B. Improper Hypotheticals
Hopfinger next argues that Defendants’ objection to Request Nos. 7, 16, 18, 22, and
26 as improper hypotheticals should be overruled. Hopfinger asserts that these requests
are essential in order to present uncontested calculations regarding her salary and years
of service to the jury.

In response, Defendants argue that Rule 36(a)(1)(A) allows requests to admit
relating to facts, the application of law to facts, or opinions about either. Here, however,
Hopfinger is asking Defendants to admit conclusions based upon assumptions and what-
if scenarios (e.g., Hopfinger’s final 2017 earnings had she worked 2,080 hours, her years
of service at age 62, her total pension if she lived to be 83, and the percent of her final
earnings she would be entitled to for 36 years of service).

While the Court agrees that these requests are related to the facts of the case, they
are presented as impermissible hypothetical questions. See Buchanan v. Chicago Transit
Auth., No. 16-CV-4577, 2016 WL 7116591, at *5 (N.D. Ill. Dec. 7, 2016); Storck USA, L.P. v.
Farley Candy Co., No. 92-cv-552, 1995 WL 153260, at *3 (N.D. Ill. Apr. 6, 1995) (Plaintiff
“will not be required to admit to such hypothetical admissions.”). Defendants’ objections

to Request Nos. 7, 16, 18, 22, and 26 are therefore SUSTAINED.
C. Vagueness
In Request No. 21, Hopfinger asked Defendants to admit that she would have been
entitled to a 3 percent cost of living raise each year once she began receiving her pension.
Defendants responded: “Based upon the assumptions made in the plan at the time the

document was created, admit.” Hopfinger argues that this response is impermissibly
vague, as Defendants do not explain what assumptions, plan, or document to which they
are referring. In response, Defendants explain that the IMRF reserves its right to make a
final determination of benefits; thus, Defendants cannot make any assumption beyond
the IMRF plan currently in effect for City of Nashville present and former employees.
The Court agrees with Defendants that this response is not impermissibly vague;

accordingly, Defendants will not be required to supplement their answer.
II. Motion to Compel
Hopfinger has moved to compel all Defendants except Defendant Brian Fletcher
to respond to three discovery requests.
A. Contention Interrogatory
First, Hopfinger asserts that Defendants’ response to her contention interrogatory

regarding whether Fletcher had final decision-making authority to discharge her from
employment was insufficient when Defendants answered by referring to pages from the
deposition of Eric Rolf, the City of Nashville’s mayor and Rule 30(b)(6) designee.
“Under Rule 33(b), interrogatories must be answered fully and include all
information within the party’s control or known by the party’s agents.” Bell v. Woodward

Governor Co., No. 03 C 50190, 2005 WL 289963, at *2 (N.D. Ill. Feb. 7, 2005). While
interrogatory answers should be complete in themselves and not merely reference other
discovery, “incorporation of other discovery as an answer to an interrogatory may be
acceptable, especially if the cross-reference is clear.” Id.
Here, Defendants cite a specific portion of Rolf’s deposition that answers the

contention interrogatory at issue (Doc. 91-1 at p. 2). Rolf testified on behalf of the City of
Nashville that he and the city council gave Fletcher consent or permission to discharge
the Hopfingers, and then it was up to Fletcher whether to dismiss them (Id.). The fact that
the contention interrogatory was directed to the other named Defendants in addition to
the City of Nashville is of no consequence. This portion of the motion is denied.
B. Blue Book Contents
Hopfinger next moves to compel the production of the “Blue Book” contents as of

August 15, 2017. In response to her initial request, Defendants stated that “[t]he Blue Book
was not copied on August 15, 2017.” While Hopfinger acknowledges that Defendants can
say they are not in possession of the requested document, she asserts that their current
answer is unresponsive.
In response, Defendants explain that the “Blue Book” is a compilation of hard

documents spanning a number of years. It does not exist electronically such that
Defendants could go back to the exact version as it existed on August 15, 2017, and print
it. Thus, Defendants are not in possession of the requested discovery. Accordingly, this
portion of Hopfinger’s motion is denied.
C. Documents Relating to Police Officer Kim Neuner

Finally, relating to Police Officer Kim Neuner, Hopfinger seeks “documents
reflecting potential impeachment evidence such as ‘Giglio’ letters, Brady rule disclosures,
or other documents disclosed to arrestees or criminal defendants.” (Doc. 72-4).
Hopfinger claims Neuner may be similarly situated to plaintiff for “certain purposes.” In
response to her request for production, Defendants responded that “these” Defendants

were not in possession of any responsive documents, but, Hopfinger argues, did not
explain whether any documents were in their custody or control. In response, Defendants
assert that the requested information is irrelevant to the case and that they said they are
not in possession of any responsive documents.
The Court agrees with Defendants and finds there is no basis to compel them to
produce such information if it is not in their possession. Defendants are reminded, of

course, that they have a continuing obligation to supplement or correct their discovery
responses where appropriate. FED. R. Clv. P. 26(e).
CONCLUSION
For these reasons, Court OVERRULES in part and SUSTAINS in part
Defendants’ objections to Plaintiff Melissa Hopfinger’s Requests for Admissions.
Plaintiff's Motion to Compel directed to Defendants City of Nashville, Eric Rolf, Josh
Fark, Sue Finke, Terry Kozuszek, Doug Hargen, Kelly Sheridan, and Dennis Kellerman
(Doc. 84) is DENIED.

IT IS SO ORDERED.
DATED: March 11, 2020
Teel oeteg
NANCY J. ROSENSTENGEL |
Chief U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10151712. Public record. Not legal advice.