Gateway Deliveries LLC v. Mattress Liquidators Incorporated et al

Filing 102

ORDER denying 50 Motion to Compel. Signed by Judge John W Sedwick on 12/3/15. (JWS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Gateway Deliveries, LLC

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Plaintiff,
vs.
Mattress Liquidators, Inc., et al.,
Defendants.

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2:14-cv-02033 JWS
ORDER AND OPINION
[Re: Motion at Docket 50]

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I. MOTION PRESENTED
At docket 50 plaintiff Gateway Deliveries, LLC (“Gateway”) moves pursuant to

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Rule 37 of the Federal Rules of Civil Procedure for an order compelling defendant

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Mattress Firm, Inc. (“Mattress Firm”) to produce documents responsive to Gateway’s

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second requests for production of documents (“RFP”) and for an award of attorney’s

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fees. Mattress Firm opposes at docket 74; Gateway replies at docket 76. Oral

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argument was not requested and would not assist the court.

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II. BACKGROUND
The background to this case is set out in the court’s order at docket 31 and need

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not be repeated here. Suffice it to say for present purposes that Mattress Firm’s

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response to Gateway’s RFP, through counsel Gary L. Rosser, contained objections but

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no documents.1 Gateway’s counsel, Stefan M. Palys, sent Mr. Rosser two emails in

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August 2015 regarding the parties’ current discovery dispute.2 Mr. Rosser did not

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respond. Three days after the latter email, Gateway filed the present motion to compel.

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On August 26 the court granted Mattress Firm’s application to substitute Ronda

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R. Fisk for Mr. Rosser as its attorney of record, but specifically retained jurisdiction to

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order any relief that might be appropriate based on Mr. Rosser’s conduct in this case.3

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Ms. Fisk states that after conferring with Gateway’s counsel, Mattress Firm produced

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documents that, it believes, resolves the parties’ discovery dispute. Gateway confirms

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that it received these documents, and it does not identify any problems with the

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production.

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III. DISCUSSION

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Gateway’s motion for an order compelling Mattress Firm to produce documents

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responsive to its RFP is denied as moot. The only remaining issue before the court is

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whether an award of attorney’s fees is appropriate. Rule 37(a)(5) provides that if the

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requested discovery is provided after a motion to compel is filed, the court ordinarily

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“must, after giving an opportunity to be heard, require the party . . . whose conduct

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necessitated the motion, the party or attorney advising that conduct, or both to pay the

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movant’s reasonable expenses incurred in making the motion, including attorney’s

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fees.” An attorney’s fee award is unwarranted, however, where “(I) the movant filed the

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motion before attempting in good faith to obtain the disclosure or discovery without court

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action; (ii) the opposing party’s nondisclosure, response, or objection was substantially

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justified; or (iii) other circumstances make an award of expenses unjust.”4

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Doc. 50-1 at 13.

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Id. at 16.
Doc. 60.
Fed. R. Civ. P. 37(a)(5)(A).

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Mattress Firm argues that Gateway filed this motion before attempting in good

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faith to obtain the discovery without court action. It notes that Gateway filed the motion

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only two weeks after the court entered the parties’ stipulated protective order on

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July 30,5 which triggered Mattress Firm’s obligation to produce the requested

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documents. It also argues that Gateway should have made additional efforts to confer

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with Mr. Rosser because it knew that he “had suffered serious health issues in the

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past.”6

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The court agrees with Mattress Firm that, by filing this motion to compel only
eight business days after Mr. Palys first attempted to confer with Mr. Rosser, Gateway

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did not engage in a good faith effort to avoid court intervention. Even more

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troublesome, despite Mr. Palys’ LRCiv 7.2(j) certification that he personally consulted

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with Mattress Firm’s counsel, the record reflects that he sent Mr. Rosser two emails but

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did not talk to him in person or on the telephone. “Personal consultation requires

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face-to-face communication, or at least telephone communication. Letters, faxes, and

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e-mails are insufficient.”7 Gateway’s motion for attorney’s fees is denied.

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IV. CONCLUSION

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For the reasons stated above, Gateway’s motion at docket 50 is DENIED.

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DATED this 3rd day of December, 2015.

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/s/ JOHN W. SEDWICK
SENIOR UNITED STATES DISTRICT JUDGE

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Doc. 48.
Doc. 74 at 2.

Hart v. Agnos, No. CV-77-0479-PHX-NVW, 2008 WL 2008966, at *7 (D. Ariz. Apr. 25,
2008). See also Sandpiper Resorts Dev. Corp. v. Glob. Realty Investments, LLC, No.
2:08-CV-01360 JWS, 2012 WL 2009965, at *1 (D. Ariz. June 5, 2012); Bustamante v. Graco,
Inc., No. CV03-182TUCJMR, 2005 WL 5976149, at *1 (D. Ariz. Dec. 1, 2005) (“[A]ny . . .
statement that is filed in compliance with LRCiv 7.2(j) may not be based merely on written
correspondence between the parties.”) (emphasis in original).

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