Bright v. Evonic Cyro LLC et al
ORDER denying as moot 26 Motion to Compel. Signed by Judge Susan Webber Wright on 11/5/2012. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EVONIK CYRO, LLC and Fictitious
Defendants “A”, “B”, and “C”, whether
singular or plural, those other persons,
corporations, firms, or other entities whose *
wrongful conduct caused or contributed to *
cause the injuries and damages to the
Plaintiff, all of whose true and correct
names are unknown to Plaintiff at this
time, but will be substituted by
amendment when ascertained,
Plaintiff Earrick Bright brings this action against his former employer, Evonik
Cyro, LLC (Evonik), and other unknown defendants, alleging violations of the Americans
with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq., Section 504 of the
Rehabilitation Act of 1973 (RA), 29 U.S.C. § 794, and the Family and Medical Leave Act
of 1993 (FMLA), 29 U.S.C. § 2601 et seq. By Order entered March 12, 2012 [doc.#21],
the Court granted in part and denied in part a motion of Evonik to dismiss Plaintiff’s
complaint. The Court denied Evonik’s motion to dismiss Plaintiff’s ADA and FMLA
claims but granted Evonik’s motion to dismiss Plaintiff’s RA claim.
Now before the Court is a motion of Evonik to compel discovery [doc.#26].
Evonik states that Plaintiff has failed to provide Rule 26(a) Disclosures and failed to
respond to Evonik’s First Set of Interrogatories and First Request for Production of
Documents. Evonik states that it has made a good faith effort to obtain the discovery
without court action and that Plaintiff’s failure to respond to said discovery requests was
not substantially justified. Evonik requests that the Court order that any objections to its
First Interrogatories and First Request for Production of Documents have been waived
and that Plaintiff should serve Rule 26(a) Disclosures and complete discovery responses
as soon as possible. In addition, Evonik requests that because of Plaintiff’s unjustified
failure to timely respond to this discovery or provide any responses, the Court award its
attorneys’ fees and costs incurred in connection with filing its motion to compel.
In Response, Plaintiff states he was accepted at a technical school in Houston,
Texas, and obtained loans and moved to Houston to enroll in school and look for part
time employment. Plaintiff states that since his move, he has either been working one of
his part time jobs, attending classes or studying. Plaintiff states that his relocation has
greatly hindered his ability to communicate with his counsel and provide information
requested in defendants discovery but that he has now served (on October 17, 2012) his
responses to Interrogatories and his responses to Requests for Production of Documents
on Defendants via email per the request by Evonik’s counsel. Plaintiff admits that his
responses are untimely but submits that his delay is substantially justified based upon the
circumstances described above and any award of sanctions against Plaintiff would be
unjust. See Arnold v. ADT Sec. Services, Inc., 627 F.3d 716, 720 (8th Cir. 2010) (noting
that “[u]pon granting a motion to compel, a court must require the party ‘whose conduct
necessitated the motion, 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’”
and that “[s]uch payment must be ordered unless (1) the movant filed the motion before
attempting in good faith to obtain the disclosure or discovery without court action, (2) the
nondisclosure was substantially justified, or (3) other circumstances would make the
award of expenses unjust”) (quoting Fed.R.Civ.P. 37(a)(5)(A)).
The Court has considered the matter and will deny as moot Evonik’s motion to
compel as Evonik does not dispute that Plaintiff has now provided, albeit belatedly, his
responses to Evonik’s First Set of Interrogatories and First Request for Production of
Documents1 and there is no prejudice to Evonik apparent from the record.2 The Court
informs Plaintiff, however, that it is his responsibility to timely respond to discovery
responses and the Court will not in the future find Plaintiffs’ relocation to Houston to be a
Plaintiff does not explicitly state that he has provided to Evonik his Rule 26(a)
Disclosures but it appears his failure to reference the Rule 26(a) Disclosures in his response to
Evonik’s motion to compel was an oversight. In this respect, it appears that all requested
discovery has now been provided to Evonik as Plaintiff filed his response to Evonik’s motion to
compel on October 17, 2012, stating that Evonik’s motion to compel is now moot and Evonik
has not disputed that assertion.
By Order entered October 12, 2012 [doc.#29], the Court granted an agreed upon motion
by Plaintiff to extend the discovery deadline up to and including December 21, 2012.
justifiable reason for not timely prosecuting his action.3
IT IS THEREFORE ORDERED that Evonik’s motion to compel [doc.#26] be and
it hereby is denied as moot.
Dated this 5th day of November 2012.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
Plaintiff could have filed a motion for an extension of time in which to provide
discovery which likely would have obviated the need of Evonik and this Court having to address
Plaintiff’s failure to timely respond to Evonik’s discovery requests.
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