Green v. Brown et al

Filing 159

ORDER on Motion to Compel. The Court grants in part and denies as moot in part Plaintiff's Motion for an Order Compelling Discovery 151 . The Court hereby ORDERS counsel for Defendant to pay Plaintiff $3.26 within in 30 days of the date of this order by Magistrate Judge Michael E. Hegarty on 02/16/12.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02669-WYD-MEH
STEVEN DOUGLAS GREEN,
Plaintiff,
v.
DARRELL SNYDER,
Defendant.

ORDER ON MOTION TO COMPEL

Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Plaintiff’s Motion for an Order Compelling Discovery [filed January 10,
2012; docket #151]. This matter is referred to this Court for resolution. (Docket #152.) The matter
has been fully briefed and oral argument would not materially assist the Court in deciding this
motion. For the reasons that follow, Plaintiff’s motion is granted in part and denied as moot in
part.
I.

Background
This motion arises from Defendant’s alleged failure to provide Plaintiff with timely

responses to interrogatories. Plaintiff served Defendant with the interrogatories on November 26,
2011. (Docket #151 at 1.) Pursuant to Fed. R. Civ. P. 33(b)(2), Defendant’s responses were
originally due on or before December 27, 2011. Because Defendant’s counsel was unable to finalize
the responses by that date, she requested and received an extension from Plaintiff through and
including January 6, 2012. (Docket # 156 at 2.) As of January 9, 2012, Plaintiff had still not
received the responses. (Docket #151 at 1.)
On January 10, 2012, Plaintiff filed the present motion seeking an order from the Court

compelling discovery and the costs associated with filing his motion. (Docket #151.) Defendant
filed a response to Plaintiff’s motion on January 31, 2012, arguing that Plaintiff’s motion to compel
should be denied as moot because the requested discovery had been tendered. (Docket #156 at 2.)
Defendant does not address Plaintiff’s request for costs, nor does Defendant provide the date on
which the responses were mailed. Rather, Defendant simply states “apparently Plaintiff did not
receive the Interrogatory responses before mailing the [motion].” (Id.) The Certificate of Service
attached to the Defendant’s responses to Plaintiff’s interrogatories reveals that Defendant did not
mail the documents to Plaintiff until January 9, 2012. (Docket #156-1, 6.) Plaintiff concedes that
he received the responses almost a week later, but reiterates his request for reasonable expenses
pursuant to Fed. R. Civ. P. 37(a)(5)(A). (Docket #158 at 1.) Such costs amount to $3.26 for stamps
and photocopies. (Id.)
II.

Discussion
Because Plaintiff concedes he received the requested discovery, Plaintiff’s motion to compel

is partially moot. Thus, the Court turns to Plaintiff’s request for costs pursuant to Fed. R. Civ. P.
37(a)(5)(A).
The plain language of Fed. R. Civ. P. 37(a)(5)(A) provides that if a motion to compel is
granted, or if the requested discovery is provided after the motion was filed,
the court must, after giving an opportunity to be heard, require the party or deponent
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 the attorney’s fees.”
(emphasis added). Rule 37(a)(5)(A) also provides three exceptions, stating that the Court must not
order costs or fees if: i) “the movant filed the motion before attempting in good 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
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unjust.”
There is no dispute that Defendant’s responses were due on or before January 6, 2012. The
Federal Rules of Civil Procedure contemplate a short delay between the mailing and delivery of
documents; however, that time is not unlimited. Fed. R. Civ. P. 6(d) provides for delivery within 3
days of mailing. Consistent with Rule 6(d), Plaintiff waited until after January 9, 2012 before filing
the present motion. However, the effect of Rule 6(d) is irrelevant here because the Certificate of
Service on Defendant’s responses represents that they were not mailed until January 9, 2012, three
days after they were due. Plaintiff did not receive the responses until January 17, 2012, several days
after he filed this motion.
Although Plaintiff’s motion included a request for costs and Defendant received an
opportunity to respond, Defendant made no argument regarding this issue. Thus, the Court
considers the possible exceptions under which Defendant may be relieved of the otherwise
mandatory provisions of Rule 37(a)(5)(A).
First, it is clear from the briefing that Plaintiff attempted to accommodate Defendant’s
counsel by granting her a two-week extension beyond the deadline imposed by the Federal Rules.
Plaintiff could have demanded responses by December 27, 2011, but he did not. Moreover,
Plaintiff’s ability to contact Defendant before filing the motion was limited due to his incarceration.
Thus, the Court finds that Plaintiff made a sufficient effort to obtain the requested discovery before
seeking relief from the Court.
Second, the Court considers whether the Defendant’s nondisclosure was substantially
justified. Defendant’s response does not speak to this point directly, but indicates that Defendant’s
counsel was out of town over the holidays. This, however, does not explain why Defendant was
unable to file the responses more than a week after the holiday season ended, particularly when

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Defendant had already received an extension. Thus, the Court finds that Defendant’s nondisclosure
was not substantially justified.
Finally, the Defendant cites, and the Court finds, no other circumstances that would make
an award of expenses unjust. Because none of the exceptions apply in this case, the general
provisions of Rule 37(a)(5)(A) control. The Court is, therefore, required to impose an award of
reasonable costs on the party or attorney necessitating the motion. In this case, the Court finds that
Defendant’s counsel necessitated the motion by failing to provide Plaintiff with responses to
interrogatories by the extended deadline.
Plaintiff’s motion and reply set forth his expenses, which amount to $3.26 for stamps and
photocopies. (Dockets ##151, 158.) The Court finds that these expenses are reasonable and that
Plaintiff is entitled to collect them under Fed. R. Civ. P. 37(a)(5)(A).
III.

Conclusion
Accordingly, based on the foregoing and the entire record herein, the Court grants in part

and denies as moot in part Plaintiff’s Motion for an Order Compelling Discovery [filed January
10, 2012; docket #151]. The Court hereby ORDERS counsel for Defendant to pay Plaintiff $3.26
within in thirty (30) days of the date of this order.
Dated at Denver, Colorado, this 16th day of February, 2012.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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