Spencer v. Kenny et al

Filing 94

ORDER : Plaintiff's motion 87 to compel is GRANTED. See attached order. Signed by Judge Donna F. Martinez on 11/10/15.(Constantine, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DERRICK SPENCER,

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Plaintiff,
v.
KENNY, et al.,
Defendant.

CASE NO.

3:11cv50(RNC)

RULING ON MOTION TO COMPEL
The plaintiff, a prisoner proceeding pro se, commenced this
Section 1983 action against Correctional Officer Byars.

Pending

before the court is plaintiff's motion to compel pursuant to Fed.
R. Civ. P. 37.

(Doc. #87.)

Plaintiff seeks an order compelling

the defendant to provide responses to plaintiff's July 2013 and
August

2015

discovery

attorney's fees.
2015.

requests.

He

also

seeks

an

award

of

The court heard oral argument on November 5,

For the reasons that follow, the motion is granted.

I.

Background

A.

July 2013 Requests
In July 2013, the pro se plaintiff propounded interrogatories

and production requests.
respond.

(Doc. #87, Ex. A.)

The defendant did not

In March 2015, the court appointed counsel. (Doc. #70.)

Beginning in May 2015, plaintiff's attorney contacted defendant
several times regarding the outstanding discovery.
B, C, F, G, I.)

(Doc. #87, Ex.

On September 3, 2015, defendant agreed to produce

responses to certain enumerated production requests. (Doc. #87, Ex.
J.)

B.

August 2015 requests
On

August

11,

2015,

through

counsel,

plaintiff

served

additional interrogatories and production requests. (Doc. #87, Ex.
L, M.)

Again the defendant did not respond.

sought a video of the incident.

One of the requests

Defendant told plaintiff that he

would produce the video after the court entered a protective order.
(Doc. #87, Ex. D.)

On September 18, 2105, the court granted the

parties' joint motion for a protective order.
On September 23, 2015, plaintiff sent defendant an email
regarding the outstanding responses. (Doc. #87, Ex. N.)

Plaintiff

pointed out that the court had set firm final pretrial and trial
deadlines and that "defendant's failure to respond to [plaintiff's]
discovery

[requests]

is

prosecute this action."

prejudicing

(Id. at 2.)

plaintiff's

ability

to

Plaintiff cautioned that if

he did not "receive responsive documents, interrogatory responses
and the video recordings on or before October 1, 2015, [he would]
file a motion to compel."

(Id.)

#83, Zaehringer Aff. ¶32.)

Defendant never responded.

(Doc.

On October 14, 2015, the plaintiff

filed the instant motion.
II.

Discussion
Plaintiff asks the court to issue an order (1) compelling

defendant to produce the materials agreed to during the September
3, 2015 conference that are responsive to the plaintiff's 2013
discovery requests; (2) declaring that the defendant has waived his

2

objections; (3) compelling defendant to answer plaintiff's August
2015 interrogatories and requests for production and (4) compelling
the production of all video(s) of the incident.

(Doc. #87 at 2.)

Plaintiff further requests that the court award attorney's fees
incurred in the filing of this motion.
A

party

must

answer

or

object

to

interrogatories

and

production requests within thirty days after bring served. Fed. R.
Civ. P. 33(b)(3), 34(b). Untimely objections are waived unless the
party's failure to object is excused by the court for good cause
shown. Rule 33(b)(4); Horace Mann c. v. Nationwide Mut. Ins. Co.,
238 F.R.D. 536, 538 (D. Conn. 2006)(finding that "a Rule 33(b)(4)
type waiver" applies to Rule 34 production requests)(citing cases).
"These time limits are mandatory and are important to the speedy
resolution of cases."

Berube v. Great Atl. & Pac. Tea Co., Inc.,

No. 3:06cv197(PCD), 2006 WL 3826702, *5 (D. Conn. Nov. 30, 2006).
The time limits set forth in the Federal Rules of Civil
Procedure are not optional. . . . Litigants simply do not
have unbridled, unilateral discretion to decide when they
will respond to discovery requests. The very notion of
such a chaotic system would make it impossible for cases
to be resolved in a just, speedy, and inexpensive manner
contemplated by Rule 1 of the Federal Rules of Civil
Procedure.
Id. (quoting Billups v. West, No. 95 Civ. 1146, 1997 WL 100798, at
*2 (S.D.N.Y. Mar. 6, 1997)).
The defendant asserted no objections and therefore has waived
all objections.

He does not argue otherwise.

motion to compel is GRANTED.
3

The plaintiff's

Rule 37 provides in pertinent part that if a motion to compel
is granted - or if the disclosure or 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 attorney's fees.
Fed. R. Civ. P. 37(a)(5)(A).

"[A]s Rule 37(a) explicitly states,

belated compliance does not insulate a party from sanctions."
Underdog Trucking, L.L.C. v. Verizon Services Corp., 273 F.R.D.
372, 379 (S.D.N.Y. 2011).
expenses,

however,

if

the

The court may not award reasonable
nondisclosure

was

"substantially

justified" or "other circumstances make an award of expenses
unjust."

Fed. R. Civ. P. 37(a)(5)(A)(ii), (iii).

Neither exception applies here.

Defendant contends that the

court should deny the motion because counsel "ha[ve] been working
cooperatively"1 and because "production [is] forthcoming." (Doc.
#90 at 1, 3.)

He asserts that "this issue could have simply been

resolved with a telephone conversation prior to filing the motion
to compel."
record,

(Doc. #90 at 2.)

which

is

replete

This argument is belied by the

with

1

plaintiff's

exhortations

for

In support, defendant states that he offered to produce the
video "in spite of the fact that there was no pending relevant
request." (Doc. #90 at 2.) However, request 8 of the August 2015
requests for production seeks the production of "all video or audio
proceedings of the Plaintiff taken on [the day of the incident]."
(Doc. #87, Ex. M.)
4

discovery without court intervention. Defendant is to be commended
for his collegial working relationship with opposing counsel.
However, his noncompliance - particularly in the face of impending
trial deadlines - left plaintiff with no choice but to file the
instant motion.2
Defendant has not met his burden of establishing that his
failure

to

comply

with

plaintiff's

discovery

requests

was

"substantially justified" or that there exist "other circumstances
[that would] make an award of expenses unjust." Fed. R. Civ. P.
37(a)(5)(A)(ii)-(iii).

Under these circumstances, the court is

constrained to award fees.

Counsel are encouraged to meet and

confer in a good faith effort to reach an agreement regarding the
fees. In the event the parties are unable to agree on a reasonable
award, plaintiff may file a sworn affidavit with documents in
support of the fees sought.
SO ORDERED at Hartford, Connecticut this 10th day of November,
2015.
___________/s/________________
Donna F. Martinez
United States Magistrate Judge

2

As of the day of oral argument, there remained outstanding
discovery.
5