Gann v. North-Central Alabama Regional Council of Governments et al

Filing 50

MEMORANDUM OPINION AND ORDER that the Plaintiff's motion to enforce this court order and motion for sanctions is DENIED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 11/26/2013. (AHI )

FILED
2013 Nov-26 AM 11:57
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
RODNEY GANN,
Plaintiff,
vs.
NORTH-CENTRAL ALABAMA
REGIONAL COUNCIL OF
GOVERNMENTS, a public entity;
LONA JOHNS; KENNETH
KILGO; NEAL MORRISON;
CHERRI BLANKENSHIP; and
STEFANIE FRANKLIN,
Defendants.

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Civil Action No. CV-13-S-270-NE

MEMORANDUM OPINION AND ORDER
Plaintiff, Rodney Gann, who is proceeding pro se, filed this action on February
8, 2013.1 His amended complaint, filed on September 10, 2013, asserts federal claims
for retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq. (“Title VII”), and age discrimination in violation of the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”), as
well as supplemental state-law claims for: “Invasion of Privacy – False Light”;
“Invasion of Privacy – False Light – Ratification”; “Defamation”; “Defamation –
Ratification”; “Negligent Hiring/Supervision”; “Civil Conspiracy”; and, “Intentional

1

Doc. no. 1 (Complaint).

Interference with a Business Relationship.”2
Plaintiff’s amended complaint asserts claims against six defendants: (1) the
North-Central Alabama Regional Council of Governments (“NARCOG”), his former
employer; (2) Lona Johns, an individual who served as Interim Executive Director of
NARCOG during the events that serve as the basis of plaintiff’s claims; (3) Kenneth
Kilgo, a member (or former member) of NARCOG’s Board of Directors who led an
investigation into some allegations of misconduct made against plaintiff; (4) Neal
Morrison, NARCOG’s former Executive Director; (5) Cherri Blankenship, an
individual who was involved in the investigation into plaintiff’s alleged wrongdoing;
and (6) Stefanie Franklin, an individual who was involved in the investigation into
plaintiff’s alleged wrongdoing, and who was appointed to plaintiff’s former position
after his termination.3
The case presently is before the court on plaintiff’s motion to enforce an order
entered by the court on October 15, 2013, and, motion for sanctions.4 The court held
a hearing on that motion on Monday, November 25, 2013, in Decatur, Alabama.
Based upon the pleadings, evidentiary submissions, and the argument presented at the
hearing, the court concludes that plaintiff’s motion is due to be denied.
A.

Procedural Background
2

Doc. no. 20 (Amended Complaint).

3

See id.

4

Doc. no. 41 (“Plaintiff’s Motion to Enforce Court Order and Motion for Sanctions”).
2

Plaintiff filed a motion to compel on September 30, 2013, asking the court to
require defendants to submit the Initial Disclosures required by Federal Rule of Civil
Procedure 26(a)(1),5 as well as to file their responses to plaintiff’s “First Request for
Production of Documents and First Interrogatories” (sometimes referred to for

5

Federal Rule of Civil Procedure 26(a)(1) addresses the initial disclosures required to be
made by the parties at the outset of civil suits, “without awaiting a discovery request” from the
opposing party, and it reads as follows:
(a) REQUIRED DISCLOSURES.
(1) Initial Disclosure.
(A) In General. Except as exempted by Rule 26(a)(1)(B) or as
otherwise stipulated or ordered by the court, a party must, without awaiting
a discovery request, provide to the other parties:
(i) the name and, if known, the address and telephone number
of each individual likely to have discoverable information — along
with the subjects of that information — that the disclosing party may
use to support its claims or defenses, unless the use would be solely
for impeachment;
(ii) a copy — or a description by category and location — of
all documents, electronically stored information, and tangible things
that the disclosing party has in its possession, custody, or control and
may use to support its claims or defenses, unless the use would be
solely for impeachment;
(iii) a computation of each category of damages claimed by
the disclosing party — who must also make available for inspection
and copying as under Rule 34 the documents or other evidentiary
material, unless privileged or protected from disclosure, on which
each computation is based, including materials bearing on the nature
and extent of injuries suffered; and
(iv) for inspection and copying as under Rule 34, any
insurance agreement under which an insurance business may be liable
to satisfy all or part of a possible judgment in the action or to
indemnify or reimburse for payments made to satisfy the judgment.
3

convenience as simply “plaintiff’s discovery requests”).6
On October 1, 2013, this court entered a margin order on the docket of the case
file requiring defendants to respond to the motion to compel by October 14, 2013.
Defendants filed a timely response to the motion to compel, requesting
additional time, until October 23, 2013, to submit their Initial Disclosures and respond
to plaintiff’s discovery requests.7 Defendants cited several reasons for requesting
additional time: e.g.,
!

the present attorneys did not represent NARCOG during the period of time
leading up to the termination of plaintiff’s employment and, therefore, they
were not familiar with the facts and circumstances undergirding plaintiff’s
claims;8 and,

!

the documents requested by plaintiff were voluminous and, because of the
retirement of several persons on the NARCOG staff, as well as newly-retained
counsel’s unfamiliarity with the relevant facts, it had been difficult and time
consuming to assemble the documents requested by plaintiff.9

Defense counsel also mentioned that their delay in responding to plaintiff’s discovery
requests was, at least partially, due to plaintiff’s refusal to communicate with
6

Doc. no. 27.

7

Doc. no. 33 (Defendants’ “Response to Plaintiff’s Motion to Compel and Motion for
Extension of Time”).
8

Id. ¶ 1.

9

Id. ¶ 6; see also ¶ 3.
4

defendants’ attorneys by any means other than United States Mail.10
On October 15, 2013, this court entered a margin order on the docket of the
case file granting plaintiff’s motion to compel, and ordering defendants NARCOG and
Lona Johns to provide Initial Disclosures and responses to plaintiff’s First Request for
Production and First Interrogatories on or before October 23, 2013.11
Defendants filed a “Notice of Compliance with [that] Court Order” on October
10

Id. ¶ 4 (“The undersigned counsel for NARCOG and Johns tried to reach the Plaintiff by
telephone in May, 2013 shortly after NARCOG and Johns were served with the summons and
complaint in this action and by letter dated May 21, 2013 the plaintiff notified the undersigned
counsel that he would prefer that all communications with him be in writing by mail. Said request
by the plaintiff has made it difficult for the undersigned counsel for NARCOG and Johns to
communicate with the Plaintiff since the Plaintiff will not communicate by phone or e-mail.”), ¶ 5
(“The undersigned did receive a letter from the Plaintiff dated September 24, 2013, which was
referenced in paragraph 12 of the Plaintiff’s Motion to Compel, but before the undersigned counsel
for NARCOG and Johns had a reasonable opportunity to respond to said letter the Plaintiff on
September 30, 2013 filed his Motion to Compel in this action.”).
11

The Oct. 15, 2013 text order entered on the margin of the case file reads as follows:

Defendants Lona Johns and North-Central Alabama Regional Council of
Governments are ORDERED to fully provide Fed. R. Civ. P. 26(a)(1) Initial
Disclosures and Discovery Responses to Plaintiff on or before October 23, 2013.
Defendants may be subject to sanctions, including a monetary fine imposed upon
defendants’ attorney, a finding of contempt of court, or the entry of judgment on the
issue of liability, if defendants fail to fully comply with this order. [Emphasis
supplied.]
As stated on the record of the hearing conducted November 25th, and for the reasons discussed
hereafter, this court regrets very much having included the emphasized language in the foregoing
order, threatening the imposition of sanctions. This court did not then appreciate fully the
fundamental causes of this discovery dispute: on the one hand, Mr. Gann’s failure to comply with
his Rule 37(a)(1) obligation to meet and confer in good faith with defense counsel, before filing his
motions to compel and for sanctions; and, on the other hand, Mr. Gann’s insistence that all
communications be conducted only through correspondence delivered through the United States
Postal Service. Other causes have been mentioned previously: e.g., defense counsel’s lack of
familiarity with the relevant facts as a result of the fact that another law firm represented NARCOG
during the period leading up to Gann’s termination; and,the fact that the documents requested by
plaintiff were “voluminous”: in fact exceeding 200,000 pages!
5

23, 2013.12
B.

Plaintiff’s Motion to Enforce Court Order and Motion for Sanctions
Despite defendants’ representations of compliance, plaintiff filed the motion

that is the subject of this opinion — i.e., plaintiff’s “Motion to Enforce Court Order
and Motion for Sanctions” — on November 5, 2013.13 That motion is lengthy, and
sometimes rambling, but its essence is found in plaintiff’s assertions that defendants
“stated general objections to Plaintiffs’ discovery requests,” and, that “many of the
discovery requests were not responded to adequately or, in some cases, at all.”14
1.

The sufficiency of defendants’ objections to plaintiff’s discovery
requests

Plaintiff’s contention that defendants improperly “stated general objections” to
his discovery requests has three parts, each of which is addressed below.
a.

12

Timeliness

Defendants’ notice provided:

COME NOW the defendants, North-Central Alabama Regional Council of
Governments and Lona Johns, and file this notice that these defendants served on the
plaintiff on October 23, 2013 these defendants’ responses to plaintiff’s First Request
for Production of Documents and First Interrogatories and that the defendants,
North-Central Alabama Regional Council of Governments, Lona Johns, Neal
Morrison, Stefanie Franklin and Cherri Blankenship served on the plaintiff on
October 23, 2013 their Initial Disclosures pursuant to Rule 26(a)(1) of the Federal
Rules of Civil Procedure.
Doc. no. 40, at 1
13

Doc. no. 41 (Plaintiff’s “Motion to Enforce Court Order and Motion for Sanctions”).

14

Id. ¶ 6.
6

First, plaintiff asserts that defendants’ objections should be stricken as
untimely, because they were not asserted by the date on which defendants’ discovery
responses first came due.
That argument is without merit.
The court allowed defendants until October 23, 2013 to serve their Initial
Disclosures and to respond to plaintiff’s discovery requests,15 and that deadline also
was intended to apply to any objections defendants might assert. Thus, defendants’
objections were not untimely, and they will not be deemed to have been waived.
b.

General objections

Second, plaintiff contends that defendants’ assertion of “general objections” to
his Requests for Production and Interrogatories was improper. The assertion of
general objections is not necessarily improper; in fact, it is a common litigation
practice. Upon review of defendants’ objections, the court concludes they are
sufficiently specific, and in accordance with the usual practices of attorneys who
regularly practice in the Northern District of Alabama.
c.

Signature of defendants’ attorney

Finally, plaintiff asserts that defendants’ discovery responses are improper
because they were not signed by defendants’ attorney, as required by Federal Rules
of Civil Procedure 26(g)(1) and 33(b)(5). See Fed. R. Civ. P. 26(g)(1) (“Every
15

See the text accompanying note 11, supra.
7

disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or
objection must be signed by at least one attorney of record in the attorney’s name. .
. .”); Fed. R. Civ. P. 33(b)(5) (“The person who makes the answers [to interrogatories]
must sign them, and the attorney who objects must sign any objections.”) (alteration
supplied).
In this instance, plaintiff is correct. Defendants’ respective responses to
plaintiff’s “First Requests for Production of Documents and First Interrogatories”
were signed by the individual defendants themselves, or in the case of NARCOG, by
its representative, but not by defendants’ attorney.16

Defendants’ attorney

acknowledged that mistake in a separate Certification filed on November 20, 2013,
stating that:
The undersigned counsel for Defendants, North-Central Alabama
Regional Council of Governments and Lona Johns (“Defendants”), does
hereby acknowledge that by mistake and oversight the undersigned
counsel failed to sign the Responses to Plaintiff’s First Request for
Production of Documents and First Interrogatories by Defendants dated
16

See doc. no. 42 (plaintiff’s evidentiary submission), Exhibit C (“Defendant’s, NorthCentral Alabama Regional Council of Governments, Responses to Plaintiff’s First Request for
Production of Documents and First Interrogatories”), at 11; Exhibit D (“Defendant’s, Lona Johns,
Responses to Plaintiff’s First Request for Production of Documents and First Interrogatories), at 10.
Defendants’ attorney did sign the Certificate of Service on each response, but he did not sign the
responses themselves. See Exhibit C, at 12; Exhibit D, at 11. Plaintiff complains about counsel’s
signature on the Certificate of Service being typed, rather than handwritten. Doc. no. 41, at 14 (“In
fact, the Certificate of Service is not signed by Defendants’ counsel, but just has his name typed
in.”). The signature appears as thus: “/s/ Barnes F. Lovelace, Jr.” Doc. no. 42, Exhibit C, at 12;
Exhibit D, at 11. Such an “electronic signature” is common, accepted practice in courts that require
electronic case filing. Attorneys are not required to hand-sign pleadings if they provide an electronic
signature instead.
8

October 23, 2013. The undersigned does hereby confirm that his
signature below shall constitute his signature to said Responses as
required by the Federal Rules of Civil Procedure.”17
The Certification contains the electronic signature of defendants’ attorney: i.e., “/s/
Barnes F. Lovelace, Jr.” This court, like all other courts within the Eleventh Circuit,
accepts the electronic signatures of counsel.18 Accordingly, plaintiff should treat the
discovery responses served by defendants on October 23, 2013, as properly bearing
the signature of counsel.
2.

The substantive sufficiency of defendants’ discovery responses

Plaintiff’s second argument is that defendants’ discovery responses also are
substantively inadequate: i.e., “that many of the discovery requests were not
responded to adequately or, in some cases, at all.”19
Defendants assert that they should not be required to separately respond to each
of plaintiff’s substantive arguments (which cover approximately twenty-eight pages),
because plaintiff has refused to confer with defense counsel in a good faith attempt to
resolve any issues relating to defendants’ discovery responses, as required by Federal
Rule of Civil Procedure 37(a)(1) and this court’s Uniform Initial Order.20
17

Doc. no. 46 (“Certification”), at 1.

18

Id. See note 16, supra.

19

Doc. no. 41 (Plaintiff’s “Motion to Enforce Court Order and Motion for Sanctions”) ¶ 6.

20

See doc. no. 45 (Defendant’s Response to Plaintiff’s Motion to Enforce Court Order and
Motion for Sanctions) ¶¶ 29 (“Defendants contend that before they should be required to respond
to the Court about each and every objection or complaint by Plaintiff as detailed in approximately
twenty-nine (29) pages in the Plaintiff’s Motion (Doc. 41, pg. 15-43), the Plaintiff should be
9

Indeed, subsection (a)(1) of Federal Rule of Civil Procedure 37 — which
generally addresses the topic of sanctions that might be imposed upon a party for
failing to make disclosures, or to cooperate in discovery — provides that:
On notice to other parties and all affected persons, a party may
move for an order compelling disclosure or discovery. The motion must
include a certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make disclosure
or discovery in an effort to obtain it without court action.
Fed. R. Civ. P. 37(a)(1) (emphasis supplied).
Thus, Rule 37(a)(1) plainly requires that the moving party (in this case, the
plaintiff) must confer in good faith with the party who has allegedly failed to produce
discovery documents, and that any motion to compel such discovery must contain a
certification that such a good faith conference has occurred. Id.; see also, e.g., Samadi
v. Bank of America, N.A., 476 F. App’x 819, 821 (11th Cir. 2012) (“The district court
was not required to grant [plaintiff’s] motion to compel when he failed to certify that
he had conferred in good faith with counsel for [defendant] . . . .”) (alterations
supplied) (citing Fed. R. Civ. P. 37(a)(1)).
The fact that plaintiff is neither an attorney, nor respresented by an attorney,
does not relieve him of the obligation to comply with the requirements of the Federal
required to comply with Rule 37(a)(1) and in good faith confer with the undersigned counsel for the
Defendants to resolve any issues relating to the Plaintiff’s claimed objections to the Defendants’
responses.”), 30 (“The Defendants would be caused to incur substantial expense if they are required
to respond to the Court as to each and every claimed objection by the Plaintiff without first requiring
the plaintiff to make a reasonable and good faith attempt to resolve any such discovery dispute with
counsel for the Defendants.”).
10

Rules of Civil Procedure. E.g., Kelly v. Old Dominion Freight Line, Inc., 376 F.
App’x 909, 914 (11th Cir. 2010) (“[Plaintiff’s] motion to compel did not contain a
certification that [plaintiff] had attempted, in good faith, to resolve the dispute with
[defendant]. Fed. R. Civ. P. 37(a)(1) requires motions to compel to contain such a
certification, and [plaintiff’s] pro se status does not excuse noncompliance with
procedural rules.”) (alterations and emphasis supplied) (citing Fed. R. Civ. P.
37(a)(1); McNeil v. United States, 508 U.S. 106, 113 (1980)).
Plaintiff’s act of merely sending a letter demanding compliance with his
discovery requests by an arbitrary deadline does not satisfy the meet-and-confer
requirement of Rule 37(a)(1). See, e.g., Velazquez–Perez v. Developers Diversified
Realty Corp., 272 F.R.D. 310, 312 (D. P.R. 2011) (holding that emails and letters sent
to defendant were insufficient to satisfy the meet-and-confer requirement where
plaintiff never agreed to meet with defendant to resolve discovery issues); Adams v.
Austal, No. 08–0155–KD–N, 2009 WL 5066779, at *1 (S.D. Ala. Dec. 16, 2009) (“A
single letter between counsel addressing a discovery dispute does not satisfy the Duty
to confer.”); Robinson v. Napolitano, No. CIV. 08–4084, 2009 WL 1586959, at *3 (D.
S.D. June 4, 2009) (finding that a letter outlining the reasons that one party believed
that the opposing party’s discovery responses were insufficient did not satisfy the
meet-and-confer requirement); Williams v. Board of County Commissioners of Unified

11

Government of Wyandotte County and Kansas City, Kansas, 192 F.R.D. 698, 699 (D.
Kan. 2000) (specifying that “sending unanswered correspondence to opposing counsel
demanding discovery be produced by a specific deadline” does not satisfy the meetand-confer requirement); Cotracom Commodity Trading Co. v. Seaboard Corp., 189
F.R.D. 456, 459 (D. Kan. 1999) (“[P]arties do not satisfy the conference requirements
simply by requesting or demanding compliance with the requests for discovery.”)
(alteration supplied).
Furthermore, before asking a court to compel discovery, or to impose sanctions
upon an opposing party for allegedly failing to engage in discovery, Federal Rule of
Civil Procedure 37(a)(1) clearly states that the moving party must, at a minimum,
either have an actual face-to-face meeting, or engage in a two-way conversation, with
the opposing party during which the discovery disputes are meaningfully discussed in
an honest, good-faith attempt to resolve the disputes. Those requirements were
discussed in the opinion of the District Court of Nevada in Shuffle Master, Inc. v.
Progressive Games, Inc., 170 F.R.D. 166 (D.Nev. 1996), as follows:
In addition to including the actual certification with a motion
[requesting a court order] compelling discovery, the movant must have
performed as set forth in the rule [i.e., Rule 37(a)(1)]. This means a
moving party must in good faith confer or attempt to confer with the
nonresponsive party regarding the discovery dispute. The first element
of performance is “good faith” in conferring. “Good faith” under
37(a)(2)(B) contemplates, among other things, honesty in one’s purpose
to meaningfully discuss the discovery dispute, freedom from intention
to defraud or abuse the discovery process, and faithfulness to one’s
12

obligation to secure information without court action. See Black’s Law
Dictionary 624 (5th ed. 1979). “Good faith” is tested by the court
according to the nature of the dispute, the reasonableness of the positions
held by the respective parties, and the means by which both sides
conferred. Accordingly, good faith cannot be shown merely through the
perfunctory parroting of statutory language on the certificate to secure
court intervention; rather it mandates a genuine attempt to resolve the
discovery dispute through non-judicial means.
The “conferment” is the second component of performance. It
requires a party to have had or attempted to have had an actual meeting
or conference. Such an obligation is clear from the plain meaning of the
word “confer”, which derives from the Latin roots com meaning
“together” and ferre meaning “to bring.” Hence, the word literally
translates as “to bring together.” The Court therefore finds that in order
to bring a proper motion to compel under Rule 37(a)(2)(B), a moving
party must personally engage in two-way communication with the
nonresponding party to meaningfully discuss each contested discovery
dispute in a genuine effort to avoid judicial intervention. See Nevada
Power Co. v. Monsanto Co., 151 F.R.D. 118 (D.Nev. 1993).
170 F.R.D. at 172 (alterations and emphasis supplied).
In addition to the federal rule and case law interpreting it, the Uniform Initial
Order entered in this case clearly dictates the parties’ duties to confer prior to filing
any motion other than a dispositive motion or motion to remand.21 The Order states:
B. Motions (Other than Dispositive Motions and Motions to
Remand)
Prior to filing any motion (other than a dispositive motion or a
motion to remand) in this case, moving counsel shall [in law, the word
“shall” means “must”] contact the opposing counsel and determine if
counsel will oppose the motion. All motions SHALL include, in the

21

See doc. no. 5 (Uniform Initial Order).
13

caption under the case number, a notation that the motion is either
“Opposed” or “Unopposed.” The first paragraph SHALL briefly
summarize the parties’ attempts to resolve the issue(s) and set forth
areas of agreement and disagreement.22
Here, as an initial matter, plaintiff plainly did not certify that he made a good
faith attempt to meet with defense counsel prior to bringing the motions at issue.
In fact, it is evident from the record that plaintiff not only failed to meet with
defense counsel prior to filing these motions, but that he expressly refused to engage
in two-way communication with defense counsel, either in person or by telephone, in
order to resolve the discovery “disputes” alleged by plaintiff.
Indeed, not only has defense counsel provided a sworn affidavit from a witness,
Wanda Ferguson, who avers that plaintiff refused to meet with defense counsel to
discuss matters related to plaintiff’s discovery requests,23 but plaintiff himself
confirmed in a letter dated October 29, 2013, that he would not communicate with
defense counsel in person, and would not correspond with defense counsel by any
medium other than by letter sent through the United States Postal Service. Plaintiff’s
October 29, 2013 letter to defense counsel contains these statements:
You [i.e., defendants’ attorney] also asked me to come back to
your office and discuss my case. As I first informed you by letter dated
May 29, 2013, I would prefer that all communications regarding my case

22

Id. at 8 (bracketed alteration and italicized emphasis supplied, ALL CAP and boldface
emphasis in original).
23

See doc. no. 45, Exhibit D (Affidavit of Wanda G. Ferguson), at ECF 14–15.
14

be conducted in written correspondence. I have also told you this in
person. I declined your offer to confer with you in your office. You
then told me that you would have the persons present in your office sign
affidavits that I would not cooperate with you and that you would inform
the court of my conduct.
Once again, I am informing you that if you have a position to make
about my lawsuit or have a need to communicate with me, you need to
put in a letter and mail it to me. That way there will not be confusion
about anyone’s position.24
Those statements make plain that it would be unjust to require defendants to
respond to plaintiff’s lengthy arguments. Plaintiff has steadfastly refused to even
engage in an attempt to confer with defense counsel, either in person or by telephone,
to resolve the discovery disputes that are at issue in plaintiff’s motion. Plaintiff’s
dismissive assertion that “[i]t should not be difficult for an attorney to draft a letter”
entirely fails to comprehend that, in order for any non-dispositive motion to move
forward in federal court, the parties must confer with one another.25
Defense counsel has, by all accounts, made every attempt to comply with Mr.
Gann’s requests, despite the excessive obstacles Mr. Gann has placed in the way of
normal communication between parties. Plaintiff’s act of hand-delivering a letter to
the office of defense counsel on October 28, 2013, demanding full production of
discovery requests, “without objections,” by 9:00 a.m. on October 29, 2013 — less

24

See doc. no. 45, Exhibit E (October 29, 2013 Letter from Rodney Gann to Barnes F.
Lovelace, Jr.), at ECF 16 (alteration and emphasis supplied).
25

Doc. no. 41, at 10 (alteration supplied).
15

than 24 hours later — and to then refuse to even speak to defense counsel about the
request is completely unreasonable.26 To then file a motion for sanctions is an act that
will not be tolerated.
3.

Defendants’ alleged misrepresentation about compliance with the
court’s order

Plaintiff’s final argument in the subject motion is that defendants’ October 23
“Notice of Compliance with Court Order” contains misrepresentations. Specifically,
plaintiff takes issue with defendants’ representation that their Initial Disclosures and
discovery responses were “served on the plaintiff on October 23, 2013.”27 That is
because the discovery responses submitted on behalf of NARCOG were signed by
Jeffrey Pruitt, its current Executive Director, on October 24, 2013, not October 23rd,
as typed in the Notary’s certification.28 Defendants explain this discrepancy in their
response to plaintiff’s motion as follows.
On October 21, 2013, plaintiff mailed a letter to defendants’ attorney, offering
to pick up defendants’ discovery responses from the attorney’s office during the
morning hours of October 24, 2013, so the responses would not have to be mailed.29

26

See doc. no. 45 ¶¶ 18–21; see also doc. no. 42, Exhibit F (October 28, 2013 letter from
Rodney Gann to Barnes F. Lovelace, Jr.), at 11.
27

Doc. no. 41, at 43; see also doc. no. 40 (Notice of Compliance with Court Order), at 1.

28

See doc. no. 42, Exhibit C, at 11.

29

Doc. no. 45, Exhibit B (October 21, 2013 letter from plaintiff), at 1 (“In an effort to make
things easier, I will stop by your office on Thursday, October 24, 2103 to pick up the responses to
my discovery requests which are due on October 23. This will save you from having to mail
16

The ensuing events were explained by defense counseol as follows:
13. The undersigned counsel spoke with Jeff Pruitt, the Executive
Director of NARCOG, at approximately 3:00 p.m. on October 23, 2013
about making arrangements for Mr. Pruitt to sign the interrogatories on
behalf of NARCOG on October 23rd. At that time, Mr. Pruitt was
traveling back to the North Alabama area and was north of Montgomery.
Mr. Pruitt informed the undersigned counsel he could be in Decatur by
6:00 p.m. and could sign the interrogatories at that time. Since the
Plaintiff had stated he wanted to come [to] the undersigned’s office at
10:00 a.m. on the 24th, instead of requiring Mr. Pruitt to come to the
undersigned’s office after hours on October 23, the undersigned told Mr.
Pruitt he would have him sign the interrogatories first thing on the
morning of October 24th. Mr. Pruitt signed the interrogatories prior to
the Plaintiff coming to the undersigned counsel’s office on the morning
of October 24th.
14. The date within the notary acknowledgment on the answers
to interrogatories by NARCOG had been typed showing they were
notarized on October 23rd. When Mr. Pruitt signed them on the morning
of October 24th, he put the date of October 24th by his name; however,
the undersigned counsel in notarizing Mr. Pruitt’s signature failed to
change the typed date on the notary acknowledgment to October 24th.
Clearly, if the undersigned was trying to misrepresent to the Court or to
the Plaintiff or falsely certify the date the interrogatories were signed by
Mr. Pruitt, he would not have allowed Mr. Pruitt to put the date of
October 24, 2013 by his signature . . . .30
The court accepts defendants’ explanation of these events. There is no reason
not to accept the notarization of Mr. Pruitt’s signature. Moreover, the court concludes
that defendants did not make any material misrepresentations with regard to the

them.”).
30

Doc. no. 45 ¶¶ 13-14 (alterations and emphasis supplied).
17

timeliness of their response to plaintiff’s discovery requests.31
C.

Conclusion and Order
In accordance with the foregoing, the court concludes that defendants have

made all reasonable efforts to adequately respond to plaintiff’s discovery requests.
Defendants should not be required to expend any additional resources in modifying
or supplementing their discovery responses — or even in responding to plaintiff’s
arguments — when plaintiff is unwilling to meaningfully confer with defendants in
an effort to resolve the disputes. Plaintiff’s motion to enforce this court order and
motion for sanctions is DENIED.
DONE and ORDERED this 26th day of November, 2013.
______________________________
United States District Judge

31

In fact, plaintiff acknowledges that there is no actual dispute as to whether the discovery
responses were timely submitted, in light of his agreement to physically retrieve the responses from
the office of defendants’ attorney on October 24. See doc. no. 41, at 44 (“Plaintiff had previously
agreed to pick up the required documents from Defendants’ attorney’s office the morning of October
24 as a convenience from having to mail the documents. Therefore, Plaintiff is not claiming that
he was not ‘served’ on October 23.”) (emphasis supplied).
18