Pinson et al v. 45 Development, LLC et al
ORDER DENYING AS MOOT 113 Plaintiffs' Motion to Compel; DENYING relief requested in Plaintiffs' Supplement to Motion 142 ; and DENYING AS MOOT 143 Plaintiffs' Second Motion to Compel for failure to comply with federal and local rules. Signed by Honorable P. K. Holmes, III on July 29, 2013. (jas)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CURTIS PINSON and CRISTI PINSON,
Individually and as Husband and Wife
Case No. 2:12-CV-02160
45 DEVELOPMENT, LLC; CITI TRENDS, INC.;
CITI TRENDS, INC. d/b/a CITITRENDS; and
BRANDRITE SIGN COMPANY, INC.
Currently before the Court are Plaintiffs Curtis and Cristi Pinson’s (“the Pinsons”) first (Doc.
113) and second (Doc. 143) motions to compel, a supplement to the Pinsons’ first motion to compel
(Doc. 142), and Defendant Citi Trends, Inc.’s (“Citi Trends”) responses to the first motion (Doc.
131), supplement (Doc. 145), and second motion (Doc. 146).
Subsequent to the Pinsons filing their first motion to compel against Citi Trends, Citi Trends
filed its response stating that it was “responding to the Plaintiffs’ first Interrogatories and Requests
for Production and should have those Responses completed within the next week.” (Doc. 131). The
response did not, however, set forth any reasons for why Citi Trends was late in responding to the
Pinsons discovery requests. In their supplement, the Pinsons acknowledge that responses were
received from Citi Trends on July 18, 2013, but the Pinsons assert that certain answers were
incomplete. Citi Trends filed a response to the supplement, with an attached exhibit, asserting that
the responses were not incomplete in the context of counsel’s overall formal and informal discovery.
The attached exhibit appears to support Citi Trends assertion in that it appears to provide additional
explanation for Citi Trends’ responses to discovery.
The Court finds that the Pinsons’ first motion to compel should be denied as moot, as Citi
Trends has now responded to the Pinsons’ discovery requests. It is not entirely clear what relief the
Pinsons seek through their supplement, other than compelling production of the addresses of
witnesses that have since been deposed. The supplement, instead, appears to simply inform the
Court of alleged prejudice suffered by the Pinsons due to Citi Trends’ late or incomplete disclosures.
The Pinsons also raise issues regarding noticing of the depositions of witnesses identified by Citi
Trends and the inability of Citi Trends to produce one of its witnesses to be deposed. Those issues
that are not relevant to the motion to compel will not be addressed without a separate motion that
sets forth the specific relief, if any, requested. Because it appears that counsel for Citi Trends has
explained, at least informally, the reason it did not provide contact information for its witnesses, and
because at least two of the witnesses have since been deposed by the parties, the Court finds that the
relief requested in the supplement to the Pinsons’ motion to compel should be denied at this time.
The Pinsons filed their second motion to compel on July 25, 2013 regarding interrogatories
and requests for production of documents served on Citi Trends on June 21, 2013. While the
Pinsons asserted that “[d]ue to time constraints” they were “making contemporaneous efforts to meet
and confer” while filing the motion to protect their interests, the motion did not include a statement,
as required by Federal Rule of Civil Procedure 37(a)(1) and Local Rule 7.2(g), that counsel for the
Pinsons had conferred in good faith with counsel for Citi Trends. (Doc. 144, p. 2). Citi Trends
responded to the Pinsons’ second motion on July 26, 2013 stating that “[m]ost all of this information
has already been furnished; however, formal answers will be provided in the next two days.” (Doc.
146). The Court finds that the Pinsons’ second motion to compel should be denied.
Subject to certain exceptions, if a disclosure or requested discovery is provided after a motion
to compel is filed, “the court must, after giving an opportunity to be heard, 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.” Fed.
R. Civ. P. 37(a)(5)(A). The Pinsons are directed to file an affidavit documenting their fees and
expenses incurred in bringing the first motion to compel only by August 5, 2013. Citi Trends will
be given 7 days to file any objections.
IT IS FURTHER ORDERED that the Pinsons’ first motion to compel (Doc. 113) is
DENIED AS MOOT; the relief requested in the Pinsons’ supplement to their first motion to compel
(Doc. 142) is DENIED; and the Pinsons’ second motion to compel is DENIED for failure to comply
with Federal Rule of Civil Procedure 37(a)(1) and Local Rule 7.2(g) and, alternatively, DENIED AS
IT IS SO ORDERED this 29th day of July, 2013.
/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
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