Alabama Department of Conservation et al v. Warren Alloy Valve & Fitting Co., LP et al

Filing 105

Order granting 95 MOTION to Compel Warren Alloy to respond to discovery filed by National Liability & Fire Insurance Co., Silver Ships, Inc, Alabama Department of Conservation, Marine Resources Division. Defendant is ordered to provide respo nses, to the extent it has not done so already, as set out. Plaintiffs ae to file fee petition detailing their reasonable expenses and attorney fees by 4/24/09. Defendant may file objections by 5/1/09. ( Miscellaneous deadline set for 4/24/2009., Miscellaneous deadline set for 5/1/2009.). Signed by Magistrate Judge Sonja F. Bivins on 4/20/09. (cmj)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION ALABAMA DEPARTMENT OF CONSERVATION, MARINE RESOURCES DIVISION, et al., Plaintiffs, vs. WARREN ALLOY VALVE & FITTING COMPANY, LP, et al., Defendants. * * * * * * * * * * * * ORDER This case is before the Court on Plaintiffs' Motion to Compel Discovery (Doc. 95). In their motion, Plaintiffs allege that Civil Action No. 08-00326-KD-B Defendant Warren Alloy Valve & Fitting Company, LP (hereinafter "Warren Alloy") was served with interrogatories and a request for production of documents on August 20, 2008, and that despite repeated requests, Defendant had failed to respond to Plaintiffs' discovery Defendant requests. Warren Plaintiffs to request to an order compelling discovery Alloy respond Plaintiffs' requests, and an award of attorneys' fees and costs incurred in connection with their motion to compel. In response to Plaintiff's motion, Defendant Warren Alloy asserts that its discovery responses were served in April 2009, and that a verified response would be provided on April 13, 2009, when Jordan Finn, at Warren Alloy, returned. Defendant's only explanation for its failure to timely serve the discovery responses is that Mr. Finn has been out of the country over the past several months, and that defense counsel mistakenly believed that the responses had been finalized and served. As a threshold matter, the Court finds that Defendant Warren Alloy has waived any objections to Plaintiffs' discovery requests. The evidence is undisputed that the subject discovery requests were served on Defendant in August 2008, and that despite numerous requests from counsel for Plaintiffs, Defendant's discovery responses were not provided until after the instant motion to compel was filed. and is Accordingly, ORDERED to Defendant has waived responses any to objections, provide verified Plaintiffs' discovery requests by April 24, 2009, to the extent it has not done so already. United Steelworkers of America v. IVACO, Inc., 2003 U.S. Dist. LEXIS 10008(N.D. Ga.)(As a general rule, when a party fails to object timely to discovery requests, such objections are waived.) Additionally, Defendant is ORDERED to undertake a diligent search for any documents within its custody, control or possession that are responsive to Plaintiffs' production requests. To the extent this search uncovers any responsive documents, which have not been previously made available, Defendant is DIRECTED to make such documents available to Plaintiffs no later than April 24, 2009. Rule 37 of the Federal Rules of Civil Procedure provides that the Court must compel disclosure and enter sanctions against 2 individuals discovery. who fail to make disclosures or participate in The rule provides, in pertinent part, that: If the motion [to compel] is granted--or if the disclosure or requested discovery is provided after the motion was filed--the court must, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if: (i) the movant filed the motion before attempting in faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A). In the case sub judice, the undersigned finds that Defendant has hampered discovery. Although Defendant was properly served with interrogatories and a request for the production of documents in August 2008, Defendant made no effort to comply with the request until after Plaintiffs filed the instant motion to compel. Defendant's assertion that Mr. Finn has was out of the country over the past several months, and that defense counsel mistakenly assumed that the responses had been served does not justify Defendant's failure to respond to a discovery request that was served more than six months ago. Accordingly, the Court finds, pursuant to Rule 37, that an award of sanctions against Defendant and its counsel is appropriate in this case. Accordingly, Plaintiffs are ORDERED to 3 file, by April 24, 2009, a fee petition detailing their reasonable expenses and attorney fees incurred in filing this motion. Defendant shall file any objections to the accounting statement no later than May 1, 2009. DONE this the 20th day of April, 2009. /s/ Sonja F. Bivins UNITED STATES MAGISTRATE JUDGE 4 5

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