Hammes v. Magnuson Opposition Memorandum (July 13, 2020)

Accessible document transcript

[Page 1]nSTATE OF MINNESOTA 
 
COUNTY OF OTTER TAIL 
DISTRICT COURT 
 
SEVENTH JUDICIAL DISTRICT 
 
 
Gregory P. Hammes and Stephanie C. 
Hammes, 
 
  Plaintiffs, 
 
vs. 
 
Terry Magnuson, Barb Magnuson, Steven 
Larson, and Lakes & Plains Realty, Inc. d/b/a 
Coldwell Banker at the Lakes, 
 
  Defendants. 
 
 
Case Type:  Other Civil 
Court File No. 56-CV-20-794 
 
DEFENDANT TERRY MAGNUSON’S 
MEMORANDUM OF LAW IN 
OPPOSITION TO PLAINTIFFS’ 
MOTION TO COMPEL DISCOVERY 
 
 
INTRODUCTION 
 
314 
 
That is the number of interrogatories Plaintiffs Gregory P. Hammes and Stephanie C. 
Hammes (collectively “Plaintiffs”) have served on Defendant Terry Magnuson (“Terry 
Magnuson”). Plaintiffs’ Interrogatories are replete with interrogatories that contain separate and 
distinct questions, includin g, but not limited to, seeking the factual basis for 6 7 Requests for 
Admissions, 11 affirmative defenses, 108 denials to the allegations in Plaintiffs’ Complaint and 
54 responses to the allegations in Plaintiffs’ Complaint for which Terry Magnuson lacked 
sufficient information to admit or deny. This is not a case of Terry Magnuson nitpicking Plaintiffs’ 
Interrogatories; this is a case of a blatant attempt to circumvent the Rules of Civil Procedure and 
to unduly burden Terry Magnuson with improper discovery. Because Plaintiffs’ Interrogatories 
grossly exceed the 50 interrogatory limit pursuant to the Rules, Plaintiffs’ Motion to Compel  
Discovery should be denied and Terry Magnuson should be awarded his attorney fees and costs in 
having to respond to Plaintiffs’ Motion.        
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STATEMENT OF THE ISSUES 
 
1. Whether Plaintiffs’ Motion to Compel Discovery should be denied because 
Plaintiffs have served more than the 50 interrogatories permitted pursuant to Minnesota Rules of 
Civil Procedure Rule 33.01(a).   
2. Whether Terry Magnuson should be awarded his attorney fees and  costs incurred 
in connection with having to respond to Plaintiffs’ Motion to Compel Discovery because Plaintiffs’ 
Motion was not substantially justified.  
RECORD 
 
1. Pleadings and all documents on file with the Court;    
2. Declaration of Natalie R. Walz;  
 
3. Defendant Terry Magnuson’s Answers to Plaintiffs’ Interrogatories and Requests 
for Production of Documents, a copy of which is attached as Exhibit A to the 
Declaration of Natalie R. Walz; and   
 
4. Defendant Terry Magnuson’s Responses to Plaintiffs’ Requests for  Admissions, a 
copy of which is attached as Exhibit B to the Declaration of Natalie R. Walz.     
 
STATEMENT OF FACTS 
 
 Plaintiffs commenced the above-captioned matter on or about October 3 0, 2019 asserting 
claims against Terry Magnuson for alleged nondisclosure of material facts regarding the 
geothermal heating and cooling system and the well on the subject property in connection with 
Plaintiffs’ purchase of the s ubject property . (Compl. (Oct. 30, 2019).)  On March 23, 2020, 
Plaintiffs purported to serve a joint set of Interrogatories, Requests for Production of Documents 
and Requests for Admissions on Terry Magnuson by email. (Walz Decl. ¶ 2 (July 13, 2020).) The 
parties, however, had not yet held the discovery conference required pursuant to Minnesota Rules 
of Civil Procedure Rule 26.06 and the parties had not agreed to accept service via email. ( Id. at  
¶ 3); Minn. R. Civ. P. 26.04 (2020) (stating parties cannot serve discovery until the parties have 
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held discovery conference and prepared discovery plan pursuant to Minn. R. Civ. P. 26.06). The 
parties held the discovery conference on March 27, 2020 and finalized the Discovery Plan on 
March 30, 2020. (Walz Decl. ¶ 4.)  
 Even though Plaintiffs’ discovery requests were not properly served, Terry Magnuso n 
informed Plaintiffs that he would not require Plaintiffs to serve their discovery requests and would 
deem the discovery requests served as of March 30, 2020, the day the Discovery Plan was 
completed. (Id. at ¶ 5.) On April 29, 2020, Terry Magnuson timely served objections to Plaintiffs’ 
Interrogatories and fully responded to Plaintiffs’ Requests for Production of Documents and 
Requests for Admissions. (Id. at ¶¶ 6-7. Ex. A-B.)  
On May 13, 2020, Plaintiffs demanded that Terry Magnuson provide answers to all of their 
Interrogatories in their “as is” form. (Id. at ¶ 8, Ex. C .) Terry Magnuson explained to Plaintiffs 
that, by an extremely generous count, e.g., counting Plaintiffs’ interrogatory requesting the factual 
basis for Terry Magnuson’s denial of Plaintiffs’ 68 Requests for Admissions as one interrogatory, 
not 68 interrogatories, Plaintiffs’ combined set of Interrogatories contained at least 94 
interrogatories. (Id.) Terry Magnuson informed Plaintiffs that  if they wanted to revise their 
combined set of Interrogatories to comply with the Rules, Terry Magnuson would answer the 
same. (Id.) When Plaintiffs steadfastly refused, Terry Magnuson informed Plaintiffs that if they 
brought a motion to compel the same, Terry Magnuson would count their Interrogatories in 
accordance with applicable law which would result in an even higher interrogatory count. (Id.) 
Plaintiffs now bring a Motion to Compel Terry Magnuson’s answers to their Interrogatories based 
on Terry Magnuson’s objection that the Interrogatories exceed the number permitted pursuant to 
Minnesota Rules of Civil Procedure Rule 33.01(a).1         
 
1 Plaintiffs do not seek to compel Terry Magnuson’s answers to their Interrogatories based on the other objections 
asserted by Terry Magnuson to Plaintiffs’ Interrogatories. (See Pls.’ Mem. Support Mot. Compel Disc. (July 2, 2020).) 
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ARGUMENT 
 
I. PLAINTIFFS’ MOTION TO COMPEL DISCOVERY SHOULD BE DENIED 
BECAUSE PLAINTIFFS HAVE SERVED MORE INTERR OGATORIES THAN 
PERMITTED PURSUANT TO MINNESOTA RULES OF CIVIL PROCEDURE 
RULE 33.01(a).    
 
Parties to a lawsuit are permitted to “obtain discovery regarding any nonprivileged matter 
that is relevant to any party’s claim or defense . . . .” Minn. R. Civ. P. 26.02(b). Parties may obtain 
discovery through written interrogatories. Id. 26.02(a). However, “[n]o party may serve more than 
a total of 50 interrogatories upon any other party unless permitted to do so by the court upon 
motion, notice and a showing of good cause.” Id. 33.01(a). In determining “the total number of 
interrogatories each sub division of separate questions shall be counted as an interrogatory. ” Id.; 
Id. 33.01(d) (stating “party may serve upon any other party written interrogatories, not exceeding 
50 in number including all discrete subparts . . .”).  The party upon whom the interrogatories are 
served “must respond by either answering the question to the extent his knowledge permits or 
declaring his lack of knowledge, or by making objections. ” Garrity v. Kemper Motor Sales , 159 
N.W.2d 103, 106 (Minn. 1968); Minn. R. Civ. P. 33.01(b).  
Where a party believes that another party has served interrogatories in excess of the Rules 
of Civil Procedure , it is proper for the party to  object to all of the interrogatories as the party 
otherwise waives his objection that the party has exceeded the number of interrogatories permitted 
pursuant to the Rules. State by Mattson v. Boening, 276 Minn. 151, 149 N.W.2d 87 (1967) (stating 
failure to object to interrogatories in manner provided by Rules is a waiver of all defects and 
objections except th ose relating to privilege, work product and expert’s conclusions); see 
Allahverdi v. Regents of U niv. of New Mexico , No. COV 05 -0277 (JB/DJS), 228 F. R.D. 696 
 
Terry Magnuson, therefore, does not address those objections herein. However, nothing herein shall be construed as 
a waiver by Terry Magnuson to those other and additional objections to Plaintiffs’ Interrogatories.  
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(D.N.M. July 11, 2005); Constr. Sys., Inc. v. Gen. Cas. Co. of Wisconsin , No. CV 09 -3697 
(RHK/JJG), 2011 WL 13312221, at *3-4 (D. Minn. Apr. 22, 2011) (finding party waived objection 
to interrogatory by responding to interrogatory). Accordingly, contrary to Plaintiffs’ contention, it 
would not be proper for the responding party to choose 50 interrogatories to answer and then object 
to the balance of the interrogatories. Id. Nor would the propounding party want the responding part 
to do so; the Rules count interrogatories not answers. Minn. R. Civ. P. 33.01(a) (stating “[n]o party 
may serve more than a total of 50 interrogatories . . .” (emphasis added).) Accordingly, the 
responding party could pick 50 interrogatories, object to  all or any portion of them  and have no 
further obligation to answer any of the remaining interrogatories.2    
The terms “separate question” and “discrete subpart” do not have precise definition s, 
however, courts generally find 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.” In re : Activated Carbon -Based Hunting Clothing Mktg. & Sales Practices 
Litig., No. 09-MD-2059 (RHK/JJK), 2009 WL 10659390, at *2 (D. Minn. Sept. 22, 2009) (internal 
quotations omitted); T.A. Schifsky & Sons, Inc. v. Bahr Constr., LLC , 773 N.W.2d 783, 787 n. 3 
(Minn. 2009) (stating “[w]here the language of the Federal Rules of Civil Procedure is similar to 
language in the Minnesota civil procedure rules, federal cases on the issue are instructive”) . 
Alternatively stated, “once a subpart of an interrogatory introduces a line of inquiry that is separate 
and distinct from the inquiry made by the portion of the interrogatory that precedes it, the subpart 
 
2 Plaintiffs chastise Terry Magnuson for not answering at least 50 interrogatories from their combined set of 
Interrogatories. (Pls.’ Mem. Support Mot. Compel Disc. 3 at ¶ 4.) In addition to the fact that had Terry Magnuson 
done so Plaintiffs would have undoubtedly argued this constituted a waiver of Terry Magnuson’s o bjection that 
Plaintiffs’ Interrogatories exceed the number permitted by the Rules, it is unclear why Plaintiffs would want Terry 
Magnuson to select 50 of the Interrogatories to answer as opposed to Plaintiffs selecting the 50 Interrogatories they 
want Terry Magnuson to answer. Terry Magnuson gave Plaintiffs this opportunity during his conference with Plaintiffs 
pursuant to Minnesota Rules of Civil Procedure Rule 37, but Plaintiffs refused to choose 50 Interrogatories for Terry 
Magnuson to answer. (Walz Decl. ¶ 8, Ex. C.)  
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must be considered a separate interrogatory no matter how it is designated.” Henschen & Assocs., 
LLC v. Am. Portfolios Fin. Servs., Inc., No. CV 10-3590 (SRN/JSM), 2012 WL 13027961, at *6 
(D. Minn. Apr. 9, 2012) (internal quotations omitted).  
The best test for determining whether multiple questions within a single interrogatory 
constitute one or multiple interrogatories “is to examine whether the first question is primary and 
subsequent questions are secondary to the primary question. ” Id. The court should ask “ can the 
subsequent question stand alone? Is it independent of the first question? ” Id. While genuine 
subparts should not be counted as separate interrogatories, discrete or separate question should 
even if they are joined by a conjunctive word and may be related. Id.; Fed. R. Civ. P. 33, advisory 
committee note (1968) (stating “each separate question shall be counted as a separate interrogatory 
even though it is related to a prior question or is a subdivision of a question” ). A party cannot 
evade the limitation imposed by Minnesota Rules of Civil Procedure Rule 33.01(a) by joining as 
subparts questions that seek information about discrete or separate subjects. Id.    
Here, Plaintiffs jointly served 31 numbered Interrogatories on Terry Magnuson. (Walz 
Decl. ¶ 6, Ex. A.) However, at least 21 of these numbered interrogatories contain discrete and 
separate questions . When the discrete and separate questions in Plaintiffs’ Interrogatories are 
counted, Plaintiffs’ joint Interrogatories gross ly exceed the 50 interrogatories permitted pursuant 
to Minnesota Rules of Civil Procedure Rule 33.01(a).3  
 
3 Minnesota Rules of Civil Procedure Rule 33.01(a) provides that “[n]o party may serve more than a total of 50 
interrogatories upon any other party. . . .” The Rule does not limit the number of interrogatories that may be served 
on a party where multiple parties may be represented by the same counsel. Id. Terry Magnuson does not dispute that 
each Plaintiff in this action initially was entitled to serve 50 interrogatories on each Defendant. Indeed, Defendants 
Terry Magnuson and Steven Larson  each served interrogatories on Plaintiffs even though both Defendants and both 
Plaintiffs are represented by the same counsel. (Walz Decl. ¶¶ 9 -10.) However, unlike Plaintiffs’ Interrogatories that 
were combined in one set, Defendants Terry Magnuson and S teven Larson’s Interrogatories were properly served as 
different sets. (Id.) By choosing to combine their Interrogatories into one set, Plaintiffs waived any right they had to 
each serve 50 interrogatories on a party, i.e., each Plaintiff asked the same in terrogatories to the same Defendant. 
Having properly answered Plaintiffs’ joint Interrogatories by asserting objections, Plaintiffs do not get to now “amend” 
those Interrogatories to try to claim that some were served by one Plaintiff and others were served by the other Plaintiff, 
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Interrogatory No. 3 
 Interrogatory No. 3 ask s Terry Magnuson to “[s] tate the names, addresses, and phone 
numbers of all persons from whom you have obtained statements or reports concerning the subject 
matter of this lawsuit and give the dates on which the respective statements a nd or [sic] reports 
were obtained.” (Walz Decl. ¶ 6, Ex. A.) 
A “statement” is a defined term pursuant to Minnesota Rules of Civil Procedure Rule 
26.02(d) and constitutes “(1) a written statement signed or otherwise adopted or approved by the 
person making it, or (2) a stenographic, mechanical, electrical, or other recording, or a transcription 
thereof, that is a substantially verbatim recital of an oral statement by the person making it and 
contemporaneously recorded.” A “report”, on the other hand, can be, but does not need to be in 
writing nor does it need to be ad opted or approved by the person making it. Merriam-Webster 
<https://www.merriam-webster.com/dictionary/report> (accessed July 10, 2020)  (defining 
“report” as “to give an account of . . . to serve as carrier of (a message) . . . to make a written record 
or summary of . . . to announce or relate as the result of investigation”). Accordingly, Interrogatory 
No. 3 requests information regarding two separate and distinct items and, therefore, constitutes 
two interrogatories.  
Interrogatory No. 5 
 Interrogatory No . 5 provides that “[i] f you  [Terry Magnuson]  claim that the party(ies) 
asking these interrogatories have made any admissions against interest concerning the claims in 
this action, identify what was stated, when the statement was made, the person who made t he 
 
all in an effort to try to make their Interrogatories comply with the Rules. See Minn. R. Civ. P. 15.01 (stating party 
cannot unilaterally amend pleading once response to pleading has been served). But even if Plaintiffs can unilaterally 
amend their Interrogatories after Terry Magnuson has properly responded to them, Plaintiffs’ Interrogatories still 
exceed the 50 interrogatories each of the Plaintiffs were initially provided under the Rules.     
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statement, all persons who heard or received the statement, and what was done if anything, in 
reliance on the statement.” (Walz Decl. ¶ 6, Ex. A.)  
Interrogatory No. 5 goes beyond just seeking the details of any claimed admission made 
by Plaintiffs. It also inquires into Terry Magnuson’s conduct, including, what , if anything, Terry 
Magnuson did in regards to the admission. Since the details of any admission by Plaintiffs and 
Terry Magnus on’s conduct in relation to any admission by Plaintiffs are two distinct matters, 
Interrogatory No. 5 constitutes two interrogatories.    
Interrogatory No. 7 
An interrogatory that seeks the factual basis for each defense and/or affirmative defense in 
the responding party’s answer to the complaint constitutes a separate and discrete interrogatory for 
each defense and/or affirmative defense. Alexander v. 1328 Upt own, Inc. , No. 18 -CV-1544 
(ECT/ECW), 2019 WL 4929931, at *14 (D. Minn. Oct. 7, 2019)  (finding interrogatory asking 
responding party to identify factual basis for each of its 12 affirmative defenses constituted 12 
separate and distinct interrogatories); Farmers Ins. Exch. v. West , No. CV 11 -2297 (PAM/JJK), 
2012 WL 12894845, at *8 (D. Minn. Sept. 21, 2012) ( finding interrogatory seeking factual basis 
for each affirmative defense to constitute 14 discrete subparts “because the factual basis for each 
affirmative defense is not logically or factually subsumed within or necessarily related to the 
factual basis for every other affirmative defense . . .”).    
Interrogatory No. 7 requests that Terry Magnuson: “Explain in detail any defense, 
affirmative or otherwise, that you will or may impose against the claims made by the requesting 
party.” (Walz Decl. ¶ 6, Ex. A.)  
Not even including Terry Magnuson’s defenses that do not constitute affirmative defenses, 
Terry Magnuson’s Answer to Plaintiffs ’ Complaint alone sets fo rth 11 affirmative defenses to 
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Plaintiffs’ claims. (Def. Terry Magnuson’s Ans. (Nov. 1, 2019) (identifying affirmative defenses 
as failure to state a claim upon which relief may be granted, Plaintiffs ’ alleged damages were 
caused by the action of others, c onsent, estoppel, merger, release, waiver, failure to plead fraud 
with particularity, comparative fault/contributory negligence, Plaintiffs’ failure to mitigate alleged 
damages and parol evidence rule).  Terry Magnuson’s affirmative defenses are not logical ly or 
factually subsumed within each other and the factual basis for each defense varies.  As such, 
Interrogatory No. 7 constitutes 11 interrogatories.   
Interrogatory No. 9 
 Interrogatory No. 9 seeks that Terry Magnuson: 
Identify all persons or companies, including You, whether with our [sic] without charge, 
that have installed, operated, observed, inspected, serviced, maintained, repaired, or 
replaced any System or Well at the Property and provide: 
 
a. the name of such person or company;  
 
b. the date any of the foregoing was done;  
 
c. the reason for the same;  
 
d. what specifically was done or was not done; 
  
e. what the reason for the foregoing was;  
 
f. any discussions that were had or recommendations that were made;  
 
g. any expenses incurred; and 
 
h. any other information relevant to foregoing [sic].    
 
(Walz Decl. ¶ 6, Ex. A.) 
This Interrogatory not only seeks information for five separate and distinct actions that may 
have occurred – “installed, operated, observed, inspected, serviced, maintained, repaired, or 
replaced” – but also for two separate and distinct items – the geothermal heating and cooling 
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system and the well  on the s ubject property . Merriam-Webster < https://www.merriam-
webster.com/dictionary/install> (accessed July 10, 2020)  (defining “install” as “to set up for use 
or service” ); Merriam-Webster < https://www.merriam-webster.com/dictionary/operate> 
(accessed July 10, 2 020) ( defining “operate” as “to cause to function” ); Merriam-Webster 
<https://www.merriam-webster.com/dictionary/inspect> (accessed July 10, 2020) (defining 
“inspect” as “to view closely in critical appraisal . . . to examine officially” ); Merriam-Webster 
<https://www.merriam-webster.com/dictionary/service> (accessed July 10, 2020)  (defining 
“service” as “to repair or provide maintenance for” ); Merriam-Webster <https://www.merriam-
webster.com/dictionary/maintain> (accessed July 10, 2020) (defining “maintain” as “to keep in an 
existing state (as of repair, efficiency, or validity )”); Merriam-Webster < https://www.merriam-
webster.com/dictionary/repair> (accessed July 10, 2020)  (defining “repair” as “to restore by 
replacing a part or putting tog ether what is torn or broken” ); Merriam-Webster 
<https://www.merriam-webster.com/dictionary/replace> (accessed July 10, 2020)  (defining 
“replace” as “to restore to former place or position”.4)  
The Interrogatory further contains eight subparts for each of the five requested actions for 
the two items. While Terry Magnuson submits that at least four of those subparts  (subparts c, e, f 
and h) are separate and distinct questions, even if it is assumed that all eight subparts are subsumed 
in the five actions, Interrogatory No. 9 still contains 10 interrogatories.  
Interrogatory No. 10 
 Interrogatory No. 10 asks Terry Magnuson to “[i]dentify any and all dates that the System 
and/or Well was not operating as designed, what was done to rectify the same, how long such 
lasted and any other information relevant to the foregoing.” (Walz Decl. ¶ 6, Ex. A.)   
 
4 In counting five separate actions  in Interrogatory No. 9, Terry Magnuson considers that the words serviced, 
maintained, repaired and replaced as synonyms.   
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Like Plaintiffs previous Interrogatory, this Interrogatory also asks Terry Magnuson to 
produce information regarding two separate and distinct items – the geothermal heating and 
cooling system on the subject property and the well on the subject property. Accordingly, even if 
the additional subparts to the Interrogatory are considered subsumed within the Interrogatory, 
Interrogatory No. 10 still consists of two interrogatories.  
Interrogatory No. 11 
 Interrogatory No. 11 requests that Terry Magnuson: “ Identify all knowledge you had 
regarding the system prior to listing the Property for sale on Zillow or any other listing site, prior 
to the walk through with the Hammeses, prior to the Closing, and prior to the Complaint in this 
action being served upon you.” (Walz Decl. ¶ 6, Ex. A.)   
While Interrogatory No. 11 carries the overall theme of Terry Magnuson’s knowledge 
regarding the geothermal heating and cooling system on the subject p roperty, such theme 
interrogatories are inappropriate . Gander Mountain Co. v. Cabela’s, Inc. , No. CV 04 -3125 
(PJS/RLE), 2007 WL 9735300, at *3 (D. Minn. Jan. 19, 2007)  (rejecting “common theme” test 
which provides that interrogatories should be counted as a single interrogatory where it contains 
subparts directed at eliciting detail s concerning a common theme). Interrogatory No. 11 requests 
Terry Magnuson’s knowledge regarding the geothermal heating and cooling system at four distinct 
and separate times: (1) prior to listing the subject p roperty for sale, (2) prior to Plaintiffs’ 
unidentified walkthrough of the subject property, (3) prior to Plaintiffs closing on their purchase 
of the subject property and (4) prior to Terry Magnuson being served with Plaintiffs’ Complaint 
in the instant action. Each one of these distinct time periods is a question that can be asked 
separately and is not factually subsumed within the other questions . Interrogatory No. 11, 
therefore, contains four interrogatories.  
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Interrogatory No. 12 
 Interrogatory No. 12 requires Terry Magnuson to “[i] dentify when you first learned that 
the System was contaminated with Iron bacteria, what you did in response, any products used to 
try and treat the same, any services [sic] providers that were involved with such treatment, how 
long such addressed the issue, each subse quent action you took as a result of Iron bacteria 
contamination and how long each such action lasted.” (Walz Decl. ¶ 6, Ex. A.)    
Interrogatory No. 12, at a minimum, contains as least three separate and distinct questions: 
(1) it seeks information regarding Terry Magnuson’s knowledge of alleged iron bacteria in the 
geothermal heating and cooling system, (2) it seeks information regarding what, if anything, Terry 
Magnuson did to remedy the al lege iron bacteria and (3) it seeks information regarding what, if 
anything, any service providers did to remedy the alleged iron bacteria including, apparently, “how 
long” it took the service providers to perform the work .5 Indeed, even Plaintiffs admit t hat 
Interrogatory No. 12 contains more than one interrogatory.  (Pls.’ Mem. Support Mot. Compel 
Disc. 7 at ¶ 12.) Because the areas of inquiry in Interrogatory No. 12 are  separate and distinct,  
Interrogatory No. 12 contains at least three interrogatories.   
Interrogatory No. 15 
 Interrogatory No. 15 requests that Terry Magnuson: “[e]xplain in detail and not in summary 
fashion all steps you took as part of potentially replacing/converting the System, why you took 
such steps, whether you signed any purchase ag reements or similar agreements relating to 
replacing or converting the System, if both Barb and Terry did not sign such documents, why; and, 
why you ultimately did not replace/convert the System.” (Walz Decl. ¶ 6, Ex. A.)   
 
5 The request in Interrogatory No. 12 seeking information regarding “how long” something took is extremely vague. 
(Walz Decl. ¶ 6, Ex. A.)  It is unknown whether Plaintiffs are requesting the actual man hours of the labor that was 
performed, how long the action took to remedy the issue or some other period of time. Interrogatory No. 13 suffers 
from the same vagueness with respect to “how long” certain actions took. (Id.)    
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Like Plaintiffs’ Interrogatories  that have come before, Interrogatory No. 15 similarly 
contains at least two separate and distinct questions. Interrogatory No. 15 asks Terry Magnuson to 
(1) identify the steps he took to convert the open looped geothermal heating and cooling system 
on the subject property to a closed loop geothermal heating and cooling system and (2) why he did 
not proceed with converting the open loop geothermal heating and cooling system to a closed loop 
system.     
Interrogatory No. 16 
 Interrogatory No. 16 provides that Terry Magnuson should “[e] xplain in detail and not in 
summary fashion all conversations you had with anyone, including, but not limited to Dennis Hass, 
representatives of Elsner Well Drilling, representatives of Lake Region Electric, attorney s, etc., 
regarding the System, including maintaining and/or repairing the same, replacing the same and/or 
converting to a closed loop system.” (Walz Decl. ¶ 6, Ex. A.)   
Even if the breadth of this Interrogatory is set aside, namely, that it seeks every 
communication Terry Magnuson has ever had with any individual regarding any aspect of the 
geothermal heating and cooling system on the subject p roperty, and Terry Magnuson only 
considers those individuals identified in the Interrogatory, Interrogatory  No. 16 contains at least 
four interrogatories. While it is wholly improper for Plaintiffs to seek communications from Terry 
Magnuson regarding at least one of those individuals – his attorneys – based on the attorney-client 
privilege, Plaintiffs nonetheless requested the same requiring Terry Magnuson to respond and 
thereby constituting a separate interrogatory. Any communications Terry Magnuson may have had 
with different individuals are not factually subsumed within each other and constitute distinct and 
separate questions. Interrogatory No. 16, therefore, counts as at least four interrogatories.     
 
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Interrogatory No. 17 
 Interrogatory No. 17 ask s Terry Magnuson to “[e] xplain in detail and not in summary 
fashion all training you received from anyone or any source, including date, source, and substance, 
in relating to maintaining or servicing the System, and when and what of this training you then 
provided to the Hammeses.” (Walz Decl. ¶ 6, Ex. A.)  
Interrogatory No. 17 contains at least two distinct subparts: (1) it seeks information 
regarding what training Terry Magnuson received to maintain the geothermal heating and cooling 
system on the subject property and (2) it seeks information regarding what training Terry 
Magnuson provided to Plaintiffs regarding maintaining the geothermal heating and cooling system 
on the subject property. Interrogatory No. 17, therefore, constitutes two interrogatories.  
Interrogatory No. 18 
 Interrogatory No. 18 requests that Terry Magnuson “[e]xplain in detail and not in summary 
fashion the impact of iron bacteria contamination on systems and wells such as the System and 
Well at the Property.” (Walz Decl. ¶ 6, Ex. A.)  
Interrogatory No. 18 is asking Terry Magnuson to describe the impact of iron bacteria on 
two separate and distinct items, namely, the geothermal heating and cooling system and the well  
on the subject property. Interrogatory No. 18 is, therefore, two interrogatories.   
Interrogatory No. 20 
 Interrogatory No. 20 provides that Terry Magnuson should “[i] dentify all documents in 
your possession, custody, or control, that substantiate or support any and all defenses, affirmative 
or otherwise, that you will or may impose against the claims made by the requesting party.” (Walz 
Decl. ¶ 6, Ex. A.)  
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As previously discussed, not even taking into consideration Terry Magnuson’s defenses 
that do not constitute affirmative def enses, Terry Magnuson’s Answer sets forth 11 separate 
affirmative defenses. (Def. Terry Magnuson’s Ans.) Requesting that Terry Magnuson identify all 
documents that support each of his affirmative defenses constitutes 11 interrogatories  because 
Terry Magnuson’s affirmative defenses are not factually subsumed within each other . Alexander, 
2019 WL 4929931, at *14; Farmers Ins. Exch., 2012 WL 12894845, at *8. As such, at a minimum, 
Interrogatory No. 20 constitutes 11 interrogatories.  
Interrogatory No. 22 
 Interrogatory No. 22 requests that Terry Magnuson “[e]xplain in detail, and not in summary 
fashion, why you did not disclose all facts relating to the issues with the System and Well.” (Walz 
Decl. ¶ 6, Ex. A.)  
Like many of Plaintiffs’ other Interrogatories, Interrogatory No. 22 also requests that Terry 
Magnuson provide information regarding two separate and distinct items on the subject property: 
(1) the geothermal heating and cooling system and (2) the well. Interrogatory No. 22, therefore, 
constitutes two interrogatories.    
Interrogatory No. 23 
 Interrogatory No. 23 provides that “[i]f you [Terry Magnuson] allege that the System can 
be operated as represented, describe in detail and not in summary fashion all facts supporting the 
same and all actions and costs needed to so operate the System.” (Walz Decl. ¶ 6, Ex. A.)  
The facts supporting that the geothermal heating and cooling system on the subject property 
is operational and the costs to operate the geothermal heating and cooling system on the subject 
property are two separate and distinct matters. Interrogatory No. 23, therefore, contains two 
interrogatories.  
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Interrogatory No. 24 
 Interrogatory No. 24 requests Terry Magnuson “[i]dentify how many gallons of water per 
day the System uses when operating as intended and whether you have all necessary permits for 
such operation.” (Walz Decl. ¶ 6, Ex. A.)  
This Interrogatory seeks information regarding two discrete topics: (1) how much water 
the geothermal heating and cooling system uses and ( 2) whether the necessary permits, if any, 
were obtained for the geothermal heating and cooling system. Despite being numbered as one, 
Interrogatory No. 24 contains two interrogatories.   
Interrogatory No. 26 
 Interrogatory No. 26 requests Terry Magnuson to “[d]escribe in detail and not in summary 
fashion all information relating to the System and Well that You communicated to Steven Larson 
or any other representative of Lakes & Plains Realty, Inc. d/b/a Coldwell Banker at the Lakes 
including, when, and the substance of the same, including subsequent to commencement of this 
Action.” (Walz Decl. ¶ 6, Ex. A.)  
Interrogatory No. 26 suffers the same fate as so many of Plaintiffs’ other Interrogatories in 
that it seeks information regarding two separate items on t he subject property – the geothermal 
heating and cooling system and the well . The Interrogatory, therefore, necessarily includes a 
minimum of two interrogatories. Like Plaintiffs ’ previous Interrogatory seeking communications 
that Terry Magnuson had with anyone regarding the geothermal heating and cooling system on the 
subject property, Interrogatory No. 26 similarly subjects itself to increasing for each individual 
identified by T erry Magnuson.  Indeed, Terry Magnuson’s communications with different 
individuals are not factually subsumed within each other. Terry Magnuson, nevertheless, only has 
considered Interrogatory No. 26 to constitute two interrogatories.   
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Interrogatory No. 27 
 Interrogatory No. 27 asks Terry Magnuson to “[d] escribe any and all use of the backup 
furnace that you admit to in Paragraph 18 of the Answer of Steven Larson, Terry Magnuson and 
Lakes & Plains Realty, Inc. d/b/a Coldwell Banker, including, who, when, wh y, and the status of 
the Well and System at any such times.” (Walz Decl. ¶ 6, Ex. A.)  
Interrogatory No. 27 contains at least three interrogatories; it asks Terry Magnuson to  
(1) identify when the backup furnace was used on the subject p roperty, (2) identify what the 
operation of the geothermal heating and cooling system was on a particular date and (3) identify 
what the operation of the well was on a particular date. These are questions that each stand alone 
as separate questions and, as such, constitute three separate interrogatories.   
Interrogatory No. 28  
An interrogatory that seeks the factual basis for each denial in the responding party’s 
answer to the complaint constitutes a separate and discrete interrogatory for each denial. 
Alexander, 2019 WL 4929931, at *14 (finding interrogatory requesting responding party to state 
in detail the facts upon which each denial in its answer was based constituted over 50 
interrogatories where responding party had made more than 50 denials in its answer).   
Interrogatory No. 28 requires Terry Magnuson, “[f]or any allegation in the Complaint that 
you denied, please explain in detail and not in summary fashion the basis for your response.” (Walz 
Decl. ¶ 6, Ex. A.)  
Terry Magnuson ’s Answer denies, in part or in total, 108 paragraphs  of Plaintiffs’ 
Complaint. (Def. Terry Magnuson’s Ans.) Accordingly, even assuming that each paragraph in 
Plaintiffs’ Complaint contained only one allegation, which they do not, Interrogatory No. 28 
contains a minimum of 108 interrogatories.   
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Interrogatory No. 29 
 As previously set forth, requesting a party to provide the factual basis for anything but an 
unqualified admission to the allegations in a plaintiff’s complaint constitutes a separate 
interrogatory for each allegation. Alexander, 2019 WL 4929931, at *14; Farmers Ins. Exch., 2012 
WL 12894845, at *8. 
Interrogatory No. 29 requires Terry Magnuson, “[f]or any allegation in the Complaint that 
you allege you do not have sufficient information to admit or deny, please explain in detail and 
not in summary fashion the efforts you made to gather sufficient information to admit or deny the 
same.” (Walz Decl. ¶ 6, Ex. A.)  
Terry Magnuson’s Answer states that he does not have sufficient information to admit or 
deny, in total or in part, 54 paragraphs of Plaintiffs’ Complaint.  (Def. Terry Magnuson’s Ans.)  
Again, assuming that each paragraph in Plaintiffs’ Complaint only contains one allegation, which 
they do not, Interrogatory No. 29 contains a minimum of 54 interrogatories.   
Interrogatory No. 30 
 Interrogatory No. 30 asks Terry Magnuson to “[d] escribe in detail and not in summary 
fashion all facts supporting each of your affirmative defenses set forth in either of your Answers.” 
(Walz Decl. ¶ 6, Ex. A.)   
As discussed in connection with Interrogatory No. 7 where Plaintiffs ask Terry Magnuson 
to explain all of his defenses, “affirmative of otherwise”, Terry Magnuson’s Answer sets forth 11 
affirmative defenses. (Def. Terry Magnuson’s Ans.) Each one of these a ffirmative defenses 
constitutes a separate interrogatory  as Terry Magnuson’s affirmative defenses are factually 
distinct. Interrogatory No. 30, therefore, contains 11 interrogatories.  
 
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Interrogatory No. 31 
Interrogatories asking for a factual basis for a denial of a request for admission are 
improper. Lakehead Pipe Line Co. v. Am. Home Assurance Co. , Civ. No. 5 -95-42 (MJD/RLE), 
177 F.R.D. 454, 458 (D. Minn. Dec. 5, 1997) ( stating “[r]equests for [a]dmission are not a 
discovery device” and permitting “a par ty to simply append an interrogatory to each request 
effectively converts that request into a discovery device” ). But even assuming the propriety of 
such an interrogatory, requests for admissions deal with discrete and separate subjects and, 
therefore, an interrogatory that asks a responding party to explain the basis for his denial of a 
request for admission is construed as containing a subpart for each request for admission. Id. 
(stating even if interrogatory requesting factual basis of denial of request for admission is 
appropriate, it should be counted as separate interrogatory for each request and, therefore, 
requesting party served 373 interrogatories where party had served 373 requests for admissions); 
Constr. Sys., Inc. v., 2011 WL 13312221, at *3-4 (finding interrogatory asking for factual basis for 
denial of each request for admission to constitute discrete subparts) ; U.S. v. R.J. Zavoral & Sons, 
Inc., No. 12-CV-668 (MJD/LIB), 2014 WL 12756820, at *12 (D. Minn. Jan. 17, 2014 ) (finding 
requesting party served 67 interrogatories where requesting party served 67 requests for 
admissions and sought factual basis for denial of each request).  Requests for admissions and 
interrogatories are not interchangeable procedures, and the utilization of interrogatories disguised 
as requests for admissions in  an attempt to circumvent the rules limiting the number of 
interrogatories is an abuse of the discovery process. Id. 
Interrogatory No. 31 asks: “For any Request for Admission you  [Terry Magnuson] don’t 
admit in whole, please explain in detail and not in summary fashion the basis for your response.”  
(Walz Decl. ¶ 6, Ex. A.)    
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Plaintiffs served 68 Requests for Admissions on Terry Magnuson. (Walz Decl. ¶ 7, Ex. B.) 
Terry Magnuson admitted one of Plaintiffs’ Requests for Admissions.  (Id.) Accordingly, 
Interrogatory No. 31, in and of itself, constitutes 67 interrogatories.  
Interrogatories Nos. 1, 2, 4, 6, 8, 13, 14, 19, 21 and 25   
Interrogatories Nos. 1, 2, 4, 6, 8, 13, 14, 19, 21 and 25 all consist of one interrogatory for 
a total of 10 interrogatories.6 (Walz Decl. ¶ 6, Ex. A.)  
When all of the separate and discrete subparts of Plaintiffs’ Interrogatories to Terry 
Magnuson are counted, Plaintiffs have served a total of 314 Interrogatories on Terry Magnuson.7 
Despite Plaintiffs’ attempts to characterize otherwise, Terry Magnuson’s objection that the number 
of interrogatories served by Plaintiffs exceeds the 50 they are permitted pursuant to the Rules is 
not Terry Magnuson’s attempt to be an obstructionist or to force Plaintiffs to engage in “linguistic 
acrobatics.” (Pls.’ Mem. Support Mot. Compel Disc. 10 at ¶ 16.) If Plaintiffs had been over the 50 
interrogatory limit by a few interrogatories, Terry Magnuson would have answered the 
interrogatories without waiving his other objections. But being over the 50 interrogatory limit by 
264 interrogatories is another story. The fact that another Defendant decided to answer Plaintiffs’ 
excessive Interrogatories in no manner compels or requires Terry Magnuson to follow suit, as 
Plaintiffs seem to think it does. Because Terry Magnuson properly objected to Plaintiffs’ 
Interrogatories, Plaintiffs’ Motion to Compel Discovery should be denied.     
   
 
6 Terry Magnuson contends that Interrogatory No. 6 regarding Terry Magnuson’s experts contains multiple subparts. 
(Walz Decl. ¶ 6, Ex. A.) However, since expert disclosure is governed by Minnesota Rules of Civil Procedure Rule 
26.02(e), Terry Magnuson counts Interrogatory No. 6 as one interrogatory.  
 
7 Plaintiffs’ Interrogatories also include a definition section which provides different definitions for the word “identify” 
depending on whether the word is used in connection with a person, a document or a communication. (Walz Decl.  
¶ 6, Ex. A.) Terry Magnuson has not even taken into consideration Plaintiffs’ definition section in determining that 
Plaintiffs’ Interrogatories exceed the 50 interrogatory limit permitted by the Rules.   
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II. TERRY MAGNUSON  SHOULD BE AWARDED HIS ATTORNEY FEES AND 
COSTS INCURRED IN CONNECTION WITH RESPONDING TO PLAINTIFFS’ 
MOTION TO COMPEL  DISCOVERY BECAUSE PLAINTIFFS’ MOTION TO 
COMPEL DISCOVERY WAS NOT SUBSTANTIALLY JUSTIFIED.     
 
If a motion to compel discovery is denied, the court shall require the moving party to pay 
to the non-moving party’s attorney fees and costs incurred in connection with bringing the motion, 
unless the court finds that the motion was substantially justified or that an award of expenses would 
be unjust. Minn. R. Civ. P. 37.01(d)( 2). Whether a motion to compel is substantially justified 
generally means that it is justified to a degree that could satisfy a reasonable person and more than 
merely undeserving of sanctions for frivolousness. See Dewitt v. London Rd. Rental Ctr., Inc., 899 
N.W.2d 883, 888 (Minn. Ct. App. 2017), rev’d on other grounds, 910 N.W.2d 412 (Minn. 2018).  
Here, Plaintiffs’ Motion to Compel Discovery was not substantially justified.  Plaintiffs 
were not even in the same ballpark as to the number of interrogatories that are permitted to be 
served pursuant to the Rules. (Walz Decl. ¶ 6, Ex. A.) Rather than simply remove some of the 
offending interrogatories to even get a ticket into the right ballpark, Plaintiffs refused. (Id. at ¶ 8, 
Ex. C.) The suggestion by Plaintiffs that Terry Magnuson should have answered at least 50 of their 
Interrogatories not only is contrary to the law, but completely ignores the fact that when they were 
asked to revise their Interrogatories to comply with the Rules, Plaintiffs would not budge.  (Id.) 
Given the same, it is untenable for Plaintiffs to imply that they would have been fine with Terry 
Magnuson responding to some, but all of, their Interrogatories. Terry Magnuson properly objected 
to Plaintiffs’ Interrogatories as exceeding the limit permitted pursuant to Minnesota Rules of Civil 
Procedure Rule 33.01(a) and, therefore, Terry Magnuson should be awarded his attorney fees and 
costs in having to respond to Plaintiffs’ Motion to Compel Discovery based on the same.8        
 
8 Terry Magnuson’s attorney fees and costs are ongoing. Terry Magnuson w ill submit a declaration itemizing his 
attorney fees and costs in accordance with Minnesota General Rules of Practice Rule 119 within 10 days of an order 
entitling Terry Magnuson to his attorney fees and costs.  
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CONCLUSION 
 
 By serving 314 interrogatories, Plaintiffs have grossly exceeded the 50 interrogatory limit 
imposed by Minnesota Rules of Civil Procedure Rule 33.01(a). Plaintiffs have failed to show any 
basis, let alone good cause, as to why they should be permitted to serve five t imes the number of 
interrogatories permitted by the Rules. Given the enormity by which Plaintiffs exceeded the 
number of permissible interrogatories, Terry Magnuson properly objected to the interrogatories. 
Plaintiffs’ Motion to Compel Discovery should be denied and Terry Magnuson should be awarded 
his attorney fees and costs in having to respond to Plaintiffs’ Motion.   
TOMSCHE, SONNESYN & TOMSCHE, P.A. 
 
 
Dated:  July 13, 2020 By /s/ Natalie R. Walz    
      David J. McGee (#203403) 
      Natalie R. Walz (#349525)  
             8401 Golden Valley Road, Suite 250 
      Minneapolis, Minnesota 55427 
      Telephone No. (763)  
      Email:  dmcgee@tstlaw.com 
         nwalz@tstlaw.com 
       
Attorneys for Defendants Terry Magnuson, Steven 
Larson and Lakes and Plains Realty, Inc. d/b/a 
Coldwell Banker at the Lakes 
 
 ACKNOWLEDGMENT 
 
Defendants Terry Magnuson, Steven Larson and Lakes and Plains Realty, Inc. d/b/a 
Coldwell Banker at the Lakes, through their undersigned attorney, hereby acknowledge that costs, 
disbursements, and reasonable attorney and witness fees may be awarded pursuant to Minnesota 
Statutes Section 549.211 to the party against whom the allegations in this pleading are asserted. 
 
Dated:  July 13, 2020    /s/ Natalie R. Walz     
Natalie R. Walz 
 
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