WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE
Re: Motion to Compel Discovery and for Sanctions Doc. # 148
Before the court is the Motion to Compel Discovery and for Sanctions of Plaintiff Fidelity National Title Insurance Company, successor-in-interest to Lawyers Title Insurance Corporation (Fidelity). (Doc. # 148.) Defendants Jean Merkelbach, individually, as Trustee of the Rockwell 1997 Trust, and as Trustee of the SES Trust (collectively, Merkelbach) filed a response. (Doc. # 154.) Fidelity filed a reply. (Doc. # 156.)
On November 27, 2013, Fidelity served Merkelbach with interrogatories, requests for admission, and requests for production of documents. (Doc. # 148 at 3 ¶ 3; Doc. # 148-1 (interrogatories); Doc. # 148-2 (requests for admission); Doc. # 148-3 (requests for production).) The responses were due on or before December 30, 2013. See Fed. R. Civ. P. 33, 34, 36; Fed.R.Civ.P. 6(d) (and adding three days to the deadline for responses because the discovery was served via mail).
Merkelbach did not contact Fidelity to request an extension of time to provide responses, and the response deadline came and went without Merkelbach serving any responses. (Doc. # 148 at 3 ¶¶ 5-6.)
Counsel for Merkelbach did contact Fidelity's counsel, ten days after the responses were due, on January 9, 2014, to discuss the responses. (Doc. # 148 at 4 ¶8.) Merkelbach believed she was not required to respond to the discovery because of a representation made in Fidelity's opposition to Merkelbach's motion to dismiss that discovery had been "halted" by the filing of the motion to dismiss. (Doc. # 148 at 4 ¶¶ 9-11.)
In fact, no stay of discovery had been entered by the court. Moreover, Fidelity's counsel advised Merkelbach's counsel that the reference to the "halt" in discovery "merely referred to the fact that in preparing an opposition to Merkelbach's motion to dismiss, [Fidelity] had to divert [its] efforts from conducting discovery and, instead, focus on responding to the motion." (Doc. # 148 at 4 ¶ 12.) Importantly, Merkelbach made no effort to contact Fidelity about this assumption prior to the time the responses to discovery were due. In addition, Merkelbach should have questioned her assumption when the discovery propounded by Fidelity was served after the purported representation of a stay of discovery was made. Therefore, Fidelity correctly took the position that Merkelbach's responses were past due.
When Fidelity's position became clear, Merkelbach filed a motion to stay discovery (Doc. # 142) and a request to withdraw the admissions which became effective by operation of Rule 36 when Merkelbach failed to timely provide responses (Doc. # 147). Fidelity likewise sought an enlargement of discovery deadlines and to continue the calendar call and trial date in this action. (Doc. # 137.) In addition to opposing Merkelbach's motions, Fidelity also subsequently filed the instant motion to compel. (Doc. # 148). To date, Merkelbach has not provided responses to the discovery.
The court recently issued an order denying Merkelbach's motion to stay discovery. (Doc. # 163.) The court denied Fidelity's motion to enlarge the discovery deadlines, instead stating that the court would set a discovery status conference once the recently served party, Oakbrook, has entered an appearance. (Id.) The court did, however, vacate the calendar call and trial dates. (Id.) In addition, the court has concurrently issuing an order granting Merkelbach's request to withdraw her admissions. (Doc. # 164.) The court will now address Fidelity's motion to compel.
A. REQUESTS FOR ADMISSIONS
As indicated above, the court has concurrently issued an order granting Merkelbach's request to withdraw her admissions. (Doc. # 164.) To the extent Fidelity argues in this motion to compel that the requests be deemed admitted (Doc. # 148 at 18-19), such a motion is unnecessary, as the portion of Rule 36 deeming matters admitted upon failure to timely serve responses and/or objections is self-executing. See, e.g., American Technology Corp. v. Mah, 174 F.R.D. 687, 690 (D. Nev. 1997).
The parties can review the court's rationale for its decision to withdraw the admissions in that order. Suffice it to say that the admissions have been withdrawn, and Merkelbach is required to provide responses (without objections, which have ...