Gagan, et al v. Sharar, et al

Filing 478

ORDER that Plaintiff Gagan's 470 Motion to Compel is GRANTED; defendant James A. Monroe shall file complete and non-evasive discovery responses, without objection, on or before May 3, 2013; defendant James A. Monroe shall make himself avail able for a deposition within the next 45 days after the service of written discovery responses; and defendants James A. Monroe shall fully cooperate with plaintiff's counsel in establishing the date and time for his deposition; the Clerk of the Court shall place a copy of this order in the United States mail, to defendant James A. Monroe's two Scottsdale addresses; and provide defendant James A. Monroe with a copy of this order electronically to his last known e-mail address. Signed by Senior Judge Robert C Broomfield on 4/8/2013.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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James L. Gagan,
c/o David G. Bray
Mariscal, Weeks, McIntyre
Friedlander, P.A.
2901 N. Central Ave.,
Suite 200
Phoenix, AZ 85012,

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Plaintiff/Judgment
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Creditor,
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vs.
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James A. Monroe, et al., )
12880 East Mercer Lane
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Scottsdale, AZ 85259,
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Defendant/Judgment )
Debtor.
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No. CIV 99-1427-PHX-RCB

O R D E R

Currently pending before the court is plaintiff Gagan’s

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motion to compel (Doc. 470).

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defendant Monroe to “provide complete and non-evasive written

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discovery responses, [and to] submit to a deposition[.]”

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Mot. (Doc. 470) at 3:12.

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Plaintiff is seeking to compel

No opposition has been filed as

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LRCiv 7.2(c) allows, and the time to do so has passed.1

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Background

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Plaintiff Gagan served interrogatories and requests for

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production of documents upon defendant Monroe on January 15,

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2013.

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Pursuant to an order of this court, defendant Monroe was

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required to “provide responses to [plaintiff’s] written

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discovery by no later than February 18, 2013[.]” Id., exh. D

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thereto (Doc. 470-4) at 12:14-15, ¶ (2) (emphasis in

Mot. (Doc. 470), exh. A thereto (Doc. 470-1) at 2.

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original).

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“make himself available for deposition within the next 45

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days after written discovery responses are served[.]” Id. at

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2:16-18 (emphasis in original).

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That order further required defendant Monroe to

On February 26, 2013, eight days late, the plaintiff did

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receive written discovery responses from defendant Monroe.

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Mot. (Doc. 470) at 2, ¶ 5.

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correspondence to defendant Monroe, those “responses were

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evasive and incomplete.”

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(Doc. 470-1) at

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mandates, on March 6, 2013, plaintiff wrote to defendant

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Monroe in “a good faith effort to obtain proper responses and

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production of documents without court intervention.”

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exh. A thereto (Doc. 470-1) at 2.

2-8.

As detailed in plaintiff’s

Id.; see also id., exh. A thereto

Therefore, as Fed.R.Civ.P. 37(a)(1)

Id.,

After outlining the

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LRCiv 7.2(c) provides that an opposing party has “fourteen (14)
days after service in a civil . . . case within which to serve and file a
responsive memorandum.” Defendant Monroe was served by mail at his last
known address: 12880 East Mercer Lane, Scottsdale, Arizona 85259. Mot.
(Doc. 470), Notice of Electronic Filing at 2. Thus, calculating the time
to respond in accordance with Fed.R.Civ.P. 6(d), and considering that this
motion to compel was filed on March 18, 2013, defendant Monroe had until
April 4, 2013 by which to respond, but he did not.

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various deficiencies in defendant’s discovery responses,

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plaintiff requested that Monroe “provide complete and non-

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evasive discovery responses as requested . . . [by] no later

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than March 14, 2013.”

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Id. at 8.

Defendant Monroe’s counsel at the time, David Carmichael

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responded to plaintiff’s letter request by forwarding a copy

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of that letter to defendant Monroe via e-mail, with a copy to

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plaintiff’s attorney, David Bray.

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470-2) at 2.

Id., exh. B thereto (Doc.

In that e-mail, attorney Carmichael advised Mr.

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Bray that he had “no objection to [Bray] contact [defendant

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Monroe] directly.”

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plaintiff’s counsel contacted defendant Monroe via e-mail,

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attaching a copy of the March 6, 2013 letter, and requesting

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that Monroe “advise as to the status of [his] responses[.]”

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Id., exh. C thereto (Doc. 470-3) at 2.

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court’s order discussed above was also attached to that e-

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mail.

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provide dates he was “available for deposition during the

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last week of March and first week of April.”

Id.

Therefore, on March 11, 2013,

A copy of this

Hence, plaintiff requested that defendant Monroe

Id.

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When no response was forthcoming, on March 14, 2013,

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plaintiff again contacted defendant Monroe via e-mail, with a

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copy to his counsel at the time, Mr. Carmichael.

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mail, plaintiff explained that due to a lack of response from

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defendant Monroe, he would be seeking court intervention to

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compel Monroe to “provide complete written discovery

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responses and submit to the deposition the Court previously

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ordered.”

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In that e-

Id., exh. D thereto (Doc. 470-4) at 2.

Defendant Monroe did not: (1) comply with this court’s
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February 8, 2013 order; (2) timely respond to plaintiff’s

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written discovery demands; (3) respond to plaintiff’s request

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that he supply more complete discovery responses by March 14,

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2013; (4) respond to plaintiff’s March 11, 2013 request that

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he apprise plaintiff of the status of his discovery

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responses; (5) provide possible deposition dates, as

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plaintiff requested; or (6) file a response to this motion.

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Discussion
In compliance with Fed.R.Civ.P. 37(a)(1), plaintiff Gagan

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“[o]n notice to other parties and all affected persons,”2

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moved this court “for an order compelling . . . discovery.”

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See Fed.R.Civ.P. 37(a)(1).

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necessary certification that plaintiff had made a “good

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faith” attempt to obtain discovery without court

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intervention, as earlier noted.

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motion to compel, Rule 37(4) directs that “an evasive or

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incomplete disclosure, answer, or response must be treated as

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a failure to disclose, answer, or respond.”

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37(4).

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That motion also included the

See cite.

In considering a

Fed.R.Civ.P.

Based upon defendant Monroe’s failure to comply with this

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court’s discovery order, combined with his failure to respond

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to any of the requests enumerated above and his failure to

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respond to this motion, it is abundantly clear that plaintiff

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Gagan is entitled to the discovery relief which he is seeking

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herein.

Therefore, the court grants plaintiff’s motion to

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Not only was defendant Monroe’s counsel at the time served with
this motion, but defendant himself was also served, as mentioned in the
preceding footnote.

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compel.

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fully comply with this discovery order, including the time

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frames set by this court, or otherwise fail to cooperate in

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discovery in this matter, may result in sanctions, including

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possible contempt proceedings.

Defendant Monroe is advised that his failure to

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Accordingly, IT IS ORDERED that:

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(1) plaintiff Gagan’s motion to compel (Doc. 470) is
GRANTED;

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(2) defendant James A. Monroe shall file complete and
non-evasive discovery responses, without objection,
on or before May 3, 2013;

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(3) defendant James A. Monroe shall make himself
available for a deposition within the next 45 days
after the service of written discovery responses;
and defendants James A. Monroe shall fully cooperate
with plaintiff’s counsel in establishing the date
and time for his deposition;
(4) the Clerk of the Court shall place a copy of this
order in the United States mail, postage prepaid,
first class to defendant James A. Monroe, 12880 East
Mercer Lane, Scottsdale, Arizona and to defendant
James A. Monroe, P.O. Box 5322, Scottsdale, Arizona
85261;3 and

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. . .
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The court did previously indicate that it would be using
defendant Monroe’s P.O. Box address for service of its April 1, 2013 order
only. See Gagan v. Monroe, 2013 WL 1339935, at *6 (D.Ariz. April 1, 2013);
Ord. (Doc. 475) at 14:2-5. However, in an abundance of caution and because
this court’s March 22, 2013 order (doc. 472) was returned as undeliverable
when mailed to the East Mercer Lane address, once again, the court is
ordering service upon defendant Monroe at his last known P.O. Box address
as stated above.

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(5) the Clerk of the Court shall provide defendant James
A. Monroe with a copy of this order electronically
to his last known e-mail address: [e-mail]4

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DATED this 8th day of April, 2013.

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Copies to counsel of record; James A. Monroe (12880 East
Mercer Lane, Scottsdale, Arizona 85259; P.O. Box 5322,
Scottsdale, Arizona 85261; and [e-mail]); and
Kimberly Sullivan pro se (12880 East Mercer Lane, Scottsdale,
Arizona 85259).

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Also in an abundance of caution, the court is directing service
upon defendant Monroe at his last known e-mail address which he used as
recently as February 5, 2013. See Gagan, 2013 WL 139935, at *2; Ord. (Doc.
475) at 4:6-8.

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