Missouri Motion to Compel

Introduction

Key Things to Know

1. 1

   Pick the subdivision before the words. A Missouri enforcement motion asks the circuit court to act on a failure to make discovery, and Rule 61.01(a) provides that for the purpose of Rule 61 an evasive or incomplete answer is to be treated as a failure to answer. Each device rule tells you where to go: Rule 57.01(e) sends interrogatories to 61.01(b), Rule 58.01(e) sends requests for production to 61.01(d), and Rule 59.01(f) keeps requests for admission out of Rule 61 altogether with its own sufficiency motion. Only 61.01(g), for deposition questions, provides for a motion for an order compelling an answer.

2. 2

   What 61.01(b) gives you for unanswered interrogatories is not a gentle order. The court may, upon motion and reasonable notice to other parties, take such action as is just and among others enter an order striking pleadings or parts of them, dismissing the action or any part of it, or rendering a judgment by default against the disobedient party; or, upon the showing of reasonable excuse, grant the party failing to answer additional time to serve answers, but that order shall provide that if the answers do not come within the additional time the pleadings shall be stricken or the action dismissed or a default judgment rendered. So the lightest relief on offer is a deadline with the terminating sanction already written into the order.

3. 3

   Who pays depends on which device you served, and this is the fact most likely to catch you out. Rule 61.01(g), deposition answers, is mandatory both ways: if the motion is granted the court, after opportunity for hearing, shall require the party or deponent whose conduct necessitated the motion, or the party or attorney advising such conduct, or both, to pay the reasonable expenses incurred in obtaining the order, including attorney fees, unless the opposition was substantially justified or other circumstances make an award unjust, and if the motion is denied the court shall require the moving party or the attorney advising the motion to pay. Rule 61.01(d)(4), documents, is permissive: an expense order is the fourth item on a list the court may choose from. Rule 61.01(b), interrogatories, contains no expense provision at all.

4. 4

   Missouri asks nothing of you before you file, which is unusual enough to be worth saying once. Rule 61.01 requires only motion and reasonable notice to the other parties, and for the physical-examination, own-deposition and follow-on limbs, reasonable notice to the other parties and all persons affected thereby. The rule contains no good faith clause, no certificate and no conference requirement. What it does contain is a gateway running the other way, at 61.01(a): a failure to act may not be excused on the ground that the discovery sought is objectionable unless the party failing to act served timely objections or applied for a protective order under Rule 56.01(c).

5. 5

   Read 61.01(b) and 61.01(d) for their sequencing, because each has two triggers. The first is a plain failure to answer or produce within the time provided by law. The second applies where the other side did object: the trigger is that the objections were thereafter overruled and the interrogatories were still not timely answered, or the documents still not timely produced. So on an objection-based dispute the rule contemplates getting the objection overruled first, with the sanctions motion available if the discovery still does not arrive. Rule 61.01(h) adds a separate fee route for objections to interrogatories or requests for production approved by local rule under Rule 56.01(b)(8): if those objections are overruled the court may assess against the objecting party, the attorney, or the attorney's law firm, or all of them, and if the fees go unpaid for 60 days the court may strike pleadings, dismiss or enter default.

6. 6

   Requests for admission are self-executing in Missouri, so there is usually nothing to compel. Rule 61.01(c) provides that where a party served with a request to admit fails to serve answers or objections as required by Rule 59.01, the genuineness of the documents or the truth of the matters shall be taken as admitted, except in cases where the provisions of Chapter 517 apply. Rule 59.01(a)(1) requires the request itself to carry a warning at its beginning, in all capital letters and boldface type and a character size as large as the largest in the request, saying that a failure to timely respond in compliance with Rule 59.01 shall result in each matter being admitted and not subject to further dispute. Where an answer did arrive but does not comply, Rule 59.01(f) gives a motion to have determined the sufficiency of the answers or objections.

7. 7

   Count the response clock from the right event, because for a newly served defendant it is not measured from your request at all. Rule 59.01(d)(1) requires responses to requests for admission within 30 days after service, but a defendant or respondent shall not be required to respond before the expiration of 60 days after the earlier of entering an appearance or being served with process. Rules 57.01(c)(1) and 58.01(c)(1) carry the same structure for interrogatories and production at 45 days. The court may allow a shorter or longer time. Three devices served on the same defendant on the same day can therefore come due on three different dates, and a motion filed on day 31 is premature against a defendant still inside the 45 or 60 day floor.

Missouri Requirements for Motion to Compel

• Which Subdivision of Rule 61.01 Your Device Sends You To

  Settle this first, because the subdivision decides the relief and the money. Interrogatories go to Rule 61.01(b) by way of Rule 57.01(e). Documents and inspection go to Rule 61.01(d) by way of Rule 58.01(e). Deposition questions go to Rule 61.01(g), the only subdivision that provides for a motion for an order compelling an answer. A party who skipped its own deposition goes to 61.01(f), which borrows the (d) orders. Requests for admission are self-executing under 61.01(c) where nothing was served, and a non-compliant answer goes to the Rule 59.01(f) sufficiency motion instead.

• What Relief You Are Actually Asking For Under That Subdivision

  Rule 61.01(b) offers an order striking pleadings or parts of them, dismissing the action or any part of it, or rendering a judgment by default; or, upon the showing of reasonable excuse, additional time to serve answers in an order that shall provide the terminating sanction if the extra time is missed. Rule 61.01(d) offers four orders: refusing to allow the disobedient party to support or oppose designated claims or defenses, striking pleadings or staying proceedings or dismissing or entering default, treating the failure as a contempt, or requiring payment of reasonable expenses. Ask for what the subdivision contains and no more, and remember the verb in each is may.

• Whether Objections Were Served and Overruled

  Rules 61.01(b) and 61.01(d) each have two triggers and the second is sequenced. Where the other side served timely objections, the trigger is that the objections were thereafter overruled and the interrogatories were still not timely answered, or the documents still not timely produced or inspection still not permitted. Record the date of the ruling on the objections. Rule 61.01(a) runs the other way and is worth citing where the other side stayed silent: a failure to act may not be excused on the ground that the discovery sought is objectionable unless the party failing to act served timely objections or applied for a protective order as provided by Rule 56.01(c).

• Proof the Thirty, Forty Five or Sixty Day Period Had Run

  State the computation and name the event you measured from. The baseline is 30 days after service of the request. For a defendant the floor is longer and runs from the earlier of entering an appearance or being served with process: 45 days for interrogatories and requests for production under Rules 57.01(c)(1) and 58.01(c)(1), and 60 days for requests for admission under Rule 59.01(d)(1). The court may allow a shorter or longer time. Three devices served on the same day can come due on three different dates, so compute each separately.

• The Request and the Response, Attached Because They Are Not Yet on File

  Missouri discovery does not reach the court file in the ordinary course. Rule 57.01(d) provides that interrogatories and answers shall not be filed with the court except upon court order or contemporaneously with a motion placing the interrogatories in issue, and Rules 58.01(d) and 59.01(e) carry the same rule for requests for production and requests for admission, with only a certificate of service filed at the time of service. So the motion is what puts the papers in front of the judge. Attach the request as served and the response as served, item by item.

• Whether the Response Followed the Quote-the-Request Form

  Missouri prescribes the form of the response, which gives you a defect on the face of the paper rather than an argument about substance. Rule 59.01(d)(2) requires the title of the response to identify the responding party and the number of the set, and requires the response to quote each request, including its original paragraph number, and immediately thereunder admit, deny or object. Rules 57.01(c)(2) and 58.01(c)(2) impose the same quote-the-request form for interrogatories and production. No consequence is stated for failing to follow it, so treat it as a defect to identify rather than a ground on its own.

• Your Own Service Count, and the Warning Legend on Requests for Admission

  Rule 57.01(a) permits no more than 25 written interrogatories including all discrete subparts, unless stipulated, ordered by the court, or approved by local rule under Rule 56.01(b)(8). Rule 59.01(a) permits no more than 25 requests for admission without leave or stipulation, except that the limit does not apply to requests regarding the genuineness or admissibility of documents. Rule 59.01(a)(1) additionally requires every request for admission to carry, at its beginning, in all capital letters, boldface type, and a character size as large as the largest in the request, the warning that a failure to timely respond in compliance with Rule 59.01 shall result in each matter being admitted and not subject to further dispute.

• The Expense Request, Matched to the Subdivision That Allows One

  Ask only where the subdivision provides for it. Rule 61.01(g) is mandatory: on a granted motion the court, after opportunity for hearing, shall require the party or deponent whose conduct necessitated the motion, or the party or attorney advising such conduct, or both, to pay the reasonable expenses incurred in obtaining the order including attorney fees, unless the opposition was substantially justified or other circumstances make an award unjust, and a denied motion is equally mandatory against the movant. Rule 61.01(d)(4) is permissive. Rule 61.01(b) contains no expense provision at all. Rule 61.01(h) reaches the objecting party, the attorney, or the attorney's law firm, or all of them, where an objection to approved discovery is overruled, with escalation if the fees go unpaid for 60 days.