Free Motion to Compel - District Court of Delaware - Delaware

Casevt :04-cv-01469-SLR Document 36 Filed 08/O3/2006 Page 1 of 4
I IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
STANFORD L. BURRIS, )
Plaintiff, g
A v. g C.A. N0.: 04-1496
I RICHARDS PAVING, INC. g
Defendant. g
PLAINTIFF'S MOTION TO COMPEL DISCOVERY
Pursuant to the provisions of Rule 37, Federal Rules of Civil Procedure, and 1[2(h) of this
Court's Scheduling Order, dated November I6, 2005, the plaintiffs moves to request this Court
to enter an order directing the defendant to respond to discovery. The basis of this motion is as
follows:
I. This is an action that arises out of the "Americans With Disabilities Act", 42
§l2l0l et.seq. The plaintiff claims that he was either discriminated against because of
his disability, or regarded as disabled. In this matter the plaintiff has a disability in the maj or life
function of talking and speaking, in that his larynx was removed, and his voice is significantly
altered.
2. On June 15, 2006, the plaintiff served upon the defendant, Plaintiffs Second Set
of Interrogatories Directed to Defendant, and Plaintiffs First Request for Production of .
Documents Directed to Defendant.

Case 1:04-cv-01469-SLR Document 36 Filed 08/O3/2006 Page 2 ot 4
3. On July 24, 2006, thirty-nine (39) days after service of the above-referenced
discovery, the defendant served its answers to that discovery.1
4. The interrogatories which the plaintiff propounded to defendant sought, among
other things, the number of persons employed by the defendant, their hourly wage, and hours
worked. This information is necessary to the plaintiff, in order for the plaintiff to properly
calculate his lost income.
5. ln the plaintiffs request for production, the plaintiff sought copies of all
documents submitted to the Delaware Department of Labor, concerning the investigation of the
complaint filed by the plaintiff in this matter. This information is relevant an necessary in order
’ to demonstrate that during the discovery process, the defendant admitted that the plaintiff was
denied a job at least in part, because of his disability in speaking, resulting from the removal of
his larynx. (See Delaware Department of Labor Findings attached hereto as Exhibit No. 3).
6. The information requested in the request for production, namely the materials
provided to the Delaware Department of Labor is critical in order to discredit and prove pretext
in this case. During sworn deposition testimony the witness provided by the defendant with
regards to the testing of the plaintiff indicated a complete and absolute denial that any
consideration was given to the plaintiHs inability to speak, and in fact, the plaintiff was not
tested in any way for his ability to speak, or to be heard on radio, or other electronic
communication devices. Such testimony is in complete variance with the decision by the
1 The failure by the defendant to file responses to the interrogatories and requests for production
within the 30 days required by Rule 33(b), Federal Rules of Civil Procedure, results in a waiver
of any objections not being opposed within that 30 day period. Grider v. Keystone Health Plan
Central, lnc., 2004 WL 902367 (E.D.Pa. 2004); Puricel v. Borough of Morrisville, 136
393, 396 (E.D.Pa. 1991); Goldy v. Beal, 91 , 451 (D.C.Pa 1981).

Case 1:04-cv-01469-SLR Document 36 Filed 08/O3/2006 Page 3 of 4
Delaware Department of Labor, and thus these documents are necessary to prove whether or not
the defendant has admitted their discrimination.
WHEREFORE, the plaintiff requests this Court to enter an order directing the defendant
to completely and fully answer the Interrogatories filed on June 15, 2006 and the Request for
Production filed on June 15, 2006.
ABER, GOLDLUST, BAKER & OVER
/s/ Gg W. Aber A
GARY W. ABER (DSB #754)
702 King Street, Suite 600
P.O. Box 1675
Wilmington, DE 19899
(302) 472-4900
Attorney for Plaintiff
DATED: July 28, 2006

Case 1:04-cv-01469-SLB Document 36 Filed 08/O3/2006 Page 4 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
STANFORD L. BURRIS, )
)
Plaintiff, )
)
v. ) C.A. No.: 04-1496
)
RICHARDS PAVING, INC. )
` )
Defendant. )
CERTIFICATION PURSUANT TO L.R. 7.1.1
The plaintiffs counsel, pursuant to L.R. 7.1.1 ceitities that he attempted to resolve the
discovery dispute between the parties by telephone communication with defendant's counsel on {
July 24, 2006.
ABER, GOLDLUST, BAKER & OVER
/s/ Gy W. Aber
( GARY W. ABER (DSB #754)
702 King Street, Suite 600
P.O. Box 1675
Wilmington, DE 19899
(302) 472-4900
Attorney for Plaintiff
DATED: July 28, 2006