Progressive EMU Inc v. Nutrition & Fitness Inc

Filing 101

MEMORANDUM OPINION AND ORDER For reasons as noted within, Plaintiffs motion to compel and request for extension of pretrial deadlines are DENIED. Signed by Judge William M Acker, Jr on 12/18/13. (SAC )

FILED
2013 Dec-18 PM 04:11
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
}
PROGRESSIVE EMU, INC., f/k/a }
JOHNSON EMU, INC.
}
}
Plaintiff and
}
Counterclaim Defendant, }
}
v.
}
}
NUTRITION & FITNESS, INC.
}
}
Defendant and
}
Counterclaim Plaintiff. }

CIVIL ACTION NO.
2:12-cv-01079-WMA

MEMORANDUM OPINION AND ORDER
Before the court is the motion of plaintiff and counterclaim
defendant Progressive Emu, Inc. (“Pro Emu”), to compel certain
discovery from defendant and counterclaim plaintiff Nutrition &
Fitness, Inc (“NFI”). For the reasons that follow, the motion will
be denied.
Federal Rule of Civil Procedure 37(a)(1) requires that a
motion to compel be accompanied by a certification that the moving
party has attempted in good faith to obtain the discovery from the
other party without the court’s involvement.

Pro Emu’s motion

contains no such express certification, nor does the motion imply
the type of conferral with the non-moving party demanded by Rule
37. The primary motivation of the instant motion appears to be Pro
Emu’s inability to meet the December 6 deadline for expert reports.
The motion was filed on the same day of the deadline, and alleges

that NFI’s designation of certain records as “attorney’s eyes only”
prevented Pro Emu’s accountant from reviewing the documents.
Pl.’s Mot. at 3.

See

But the correspondence between the parties that

preceded this motion reveals that NFI expressly invited Pro Emu to
bring an “accountant/expert” to review documents, in person, at
NFI’s facility, provided that Pro Emu revealed the identity of the
expert in advance.

See November 11 email from Charles Burke to

Deanna Weidner, Def.’s Opp’n, Ex. 4, at 4.

Despite NFI’s repeated

clarification

Emu

of

this

message,

Pro

interpreted

or

misinterpreted the email as an “insistence” that no accountant
would be permitted, and for that reason no expert attended the
document review session.

See Def.’s Opp’n, Ex. 4, at 2-3.

This

failure to properly acknowledge and appropriately respond to short,
clear emails suggests not only that Pro Emu failed to confer with
NFI,

as

required

by

Rule

37,

but

actively

avoided

such

communication.
The final deadline for all discovery in this case remains
January 31, 2014, giving the parties more than six weeks to
continue to obtain information from each other.

During this

period, the court will not hear further discovery motions, and the
parties will exchange the materials they need for trial without the
court’s

involvement,

using

cooperation

and

negotiation,

contemplated by the Federal Rules of Civil Procedure.

as

At the

conclusion of this period, the court will hear all remaining

2

discovery disputes.

If at that time it finds that the parties or

either of them has violated the Federal Rules, it will impose
appropriate sanctions.
Plaintiff’s motion to compel and request for extension of
pretrial deadlines are DENIED.
DONE this 18th day of December, 2013.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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