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Bonavito v. Nevada Property 1 LLC

United States District Court, D. Nevada

October 21, 2014

PETER BONAVITO, Plaintiff,
v.
NEVADA PROPERTY 1 LLC, Defendant.

ORDER

C. W. HOFFMAN, Jr., Magistrate Judge.

This matter is before the Court on Plaintiff's Motion to Compel (#50), filed August 27, 2014, and Defendant's Response (#53), filed September 12, 2014. It is also before the Court on Plaintiff's Motion for Leave to File a Reply (#54), filed September 26, 2014.

BACKGROUND

The complaint in this matter was filed on March 12, 2013. (#1). Shortly after the complaint was filed, on April 11, 2013, Plaintiff moved for default judgment against Defendant Nevada Property 1, LLC ("Nevada Property"). (#9). Default was entered by the Clerk of Court. (#10). Following the Clerk's entry of default, Plaintiff filed a motion for default judgment pursuant to Fed.R.Civ.P. 55(b)(2). (#11). In addition to filing a response to the motion for default, Defendant Nevada Property filed a motion to dismiss and a motion to set aside the Clerk's entry of default. See Motions (#13) and (#16). The Court denied Defendant Nevada Property's motion to dismiss, but granted the motion to set aside default. See Orders (#30) and (#31). Defendant filed its answer shortly thereafter, on November 4, 2013. (#33).

After Defendant filed and served its answer, the parties submitted their proposed discovery plan and scheduling order, which was denied for failure to comply with multiple Local Rules. (#35). Instead, the Court entered a standard discovery plan and scheduling order measuring the deadlines from the date the answer was filed. Id. On February 12, 2014, approximately three months prior to the discovery cutoff date, the parties submitted a stipulation to extend discovery. (#44). The stipulation was granted, except that several necessary deadlines that were omitted from the stipulation were included in the order and multiple proposed dates that fell on weekends were changed to the next business day. (#45). As a result, the discovery cutoff date was extended to July 7, 2014, and the dispositive motions deadline to August 4, 2014. Id. The discovery cutoff date passed and no discovery motions were filed. Defendant filed its motion for summary judgment (#48) on August 4, 2014, the deadline to file dispositive motions.

On August 27, 2014, approximately three weeks after the dispositive motions deadline, Plaintiff filed the motion to compel (#50) currently under consideration. The motion is straightforward. Plaintiff seeks responses to specified discovery requests made in both the first and second sets of interrogatories and requests for production. Plaintiff's first set of interrogatories and requests for production were served on March 6, 2014. The second set of discovery requests were served on June 11, 2014. By way of this motion, Plaintiff seeks an order compelling further responses to the following discovery requests: (1) requests for production numbers 11, 19, 20, and 22 in the first set of requests for production; (2) interrogatories 12 and 17 of the first set of interrogatories; and (3) responses to requests for production 1, 2, 3 of the second set of requests for production.[1] Defendant opposes the motion on the ground that the specified requests are irrelevant, unduly burdensome, and overbroad. It also appears that the opposition is based on the argument that the second set of requests for production were untimely and, therefore, no responses are required.

On September 26, 2014, approximately four days after the reply deadline, Plaintiff filed a motion for leave to file an untimely reply. (#54). Plaintiff acknowledges the reply was untimely, but asserts that it was the result of a calendar error and is excusable neglect. The Court agrees and will grant the motion to leave and consider the reply, which is also straightforward. Generally, Plaintiff restates many of the arguments previously asserted, but also addresses Defendant's argument regarding the timeliness of the second set of requests for production. Plaintiff argues that the response is misleading in that the second set of Rule 34 requests were propounded as a result of a conversation between counsel and sent the same day. Stating that the parties have "gotten along" during the discovery process, Plaintiff indicates that there was never a concern raised at the timeliness of the requests and requests that responses be compelled.

DISCUSSION

The motion is made pursuant to Federal Rule of Civil Procedure 37(a), which permits a party to move for an order compelling disclosure or discovery. Before filing, the moving party must certify that it made a good faith effort to confer or attempt to confer in an effort to obtain the discovery without court action. Fed.R.Civ.P. 37(a)(1). Local Rule 26-7(b) further provides that "[d]iscovery motions will not be considered unless a statement of the movant is attached thereto certifying that, after personal consultation and sincere effort to do so, the parties have been unable to resolve the matter without Court action." Both the meet and confer requirement of Rule 37 and the personal consultation requirement of LR 26-7(b) serve important purposes. Compliance is required "to lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants, through the promotion of informal, extrajudicial resolution of discovery disputes." Nevada Power v. Monsanto, 151 F.R.D. 118, 120 (D. Nev. 1993). The consultation obligation "promote[s] a frank exchange between counsel to resolve issues by agreement or to at least narrow and focus matters in controversy before judicial resolution is sought." Id. In order to serve its purpose, parties must "treat the informal negotiation process as a substitute for, and not simply a formal prerequisite to, judicial review of discovery disputes." Id. [2]

In Shuffle Master, Inc. v. Progressive Games, Inc., 170 F.R.D. 166 (D. Nev. 1996), the Court identified two prongs to Rule 37's meet and confer requirement - the certification requirement and the performance requirement. It is essential that the moving party move beyond cursory statements and "adequately set forth in the motion essential facts sufficient to enable the court to pass a preliminary judgment on the adequacy and sincerity of the good faith conferment between the parties." Id. at 171. Good faith requires more than "the perfunctory parroting of statutory language, " it requires a "genuine attempt to resolve the discovery dispute through non judicial means." Id. Doing so accomplishes the underlying policy of Rule 37(a)(1) and LR 26-7(b). Absent compelling circumstances not present here, the mere exchange of written correspondence has long been seen as insufficient to satisfy the "personal consultation" requirement. See e.g., Hunter v. Moran, 128 F.R.D. 115 (D. Nev. 1989). Shuffle Master made clear that the mere exchange of letters is also insufficient to demonstrate a good faith effort to meet and confer under Rule 37. Shuffle Master, 170 F.R.D. at 172. Simply put, the exchange of letters is an "inadequate means" through which counsel may attempt to confer. To be sure, the exchange of letters may serve to narrow or inform the issues prior to personal consultation, but both Rule 37(a)(1) and LR 26-7(b) require more.

Here, it is not clear Plaintiff complied with the consultation requirements prior to filing the motion. Plaintiff identified and complied with the requirement to certify that the good faith effort to meet and confer. But the information necessary to allow the Court to adequately assess and pass a preliminary judgment on the sincerity of the good faith conferment is lacking. Attached as Exhibits 4-10 are a series emails between counsel. Within those emails, it appears there may have been actual telephonic or personal consultation, but it is not clear. Ultimately, the burden falls on the moving party to demonstrate that the consultation requirements have been met prior to filing the discovery motion. That requirement has not been met in this instance.

More problematic is the timing of this particular motion. Federal Rule of Civil Procedure 16 requires the Court, in all cases not otherwise exempted, to issue a scheduling order limiting time to complete discovery and file motions. See Fed.R.Civ.P. 16(b)(3). Rule 16 is taken seriously. See e.g. Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994). The Ninth Circuit has stated:

In these days of heavy caseloads, trial courts in both the federal and state systems routinely set schedules and establish deadlines to foster the efficient treatment and resolution of cases. Those efforts will be successful only if the deadlines are taken seriously by the parties, and the best way to encourage that is to enforce the deadlines. Parties must understand that they will pay a price for failure to comply strictly with scheduling and other orders, and that failure to do so may properly support severe sanctions and exclusions of evidence.

Wong v. Regents of the Univ. Of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005). The burden is upon the individual parties to prosecute their case properly. A party is not permitted to shift the blame onto others in order to mask its own failures. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992). Affirming the importance of a scheduling order, several courts within the Ninth Circuit have denied discovery motions filed after the close of discovery. Kizzee v. Walmart, Inc., 2011 WL 3566881 (D. Ariz.) (denying motion to compel filed three months after the close of discovery and after motions for summary judgment had been filed); Skinner v. Ryan, 2010 WL 4602935 (D. Ariz.) (motion to compel filed over a month after the deadline for bringing discovery disputes to the court's attention denied as untimely); Christmas v. MERS, 2010 WL 2695662 (D. Nev.) (denying motion to compel filed after deadline for discovery and ...


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