Lank v. Wethersfield Public Schools

Filing 45

RULING and SCHEDULING ORDER denying 37 MOTION for Cost and Fees filed by Willilam Lank. See Scheduling Order setting interim deadlines through the close of discovery on November 16, 2015. Signed by Judge Sarah A. L. Merriam on 9/30/15.(Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
WILLIAM LANK
:
:
v.
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:
WETHERSFIELD PUBLIC SCHOOLS
:
:
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Civ. No. 3:15CV00202(AWT)
September 30, 2015

RULING and SCHEDULING ORDER
A telephone case conference was held on the record on
September 29, 2015, to discuss plaintiff’s pending Motion to
Compel and scheduling matters.
Plaintiff’s Motion to Compel [Doc. #37]
The plaintiff has filed a motion to compel discovery
responses from the defendant. Counsel for plaintiff asserted
that as of the date of the motion, September 18, 2015, she had
not received any responses or objections to the plaintiff’s
First Set of Requests for Production and Interrogatories, for
which the response deadline was July 31, 2015. [Doc. 37] Counsel
for the defendant produced an email showing that objections to
the requests had been served on plaintiff’s counsel on July 30,
2015 [Doc. #38]; plaintiff’s counsel did not challenge the
authenticity of the email, but stated that she had not received
it. Counsel for the plaintiff stated that on September 23, 2015,
she received defendant’s responses to the requests. Counsel for

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the plaintiff agreed at the conference that the defendant had
made full compliance with the requests.
The Court granted the Motion to Compel during the
conference, and took under advisement the plaintiff’s request
for an award of fees and costs.1
Rule 37 of the Federal Rules of Civil Procedure states, in
relevant part:
If the 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. But the court must not order
this payment 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 unjust.
Fed. R. Civ. P. 37(a)(5)(A).
Defendant argues that an award of fees is not warranted in
this case because plaintiff did not make “a good faith effort”
to confer prior to filing the motion in an effort to eliminate
or reduce the area of controversy, and to arrive at a mutually

Plaintiff’s counsel did not provide a specific fee request or
supporting documentation in the motion to compel.
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satisfactory resolution, as required by both the Federal and
Local Rules of Civil Procedure.
The Federal Rules provide that a motion to compel “must
include a certification that the movant has in good faith
conferred or attempted to confer with the person or party
failing to make disclosure or discovery in an effort to obtain
it without court action.” Fed. R. Civ. P. 37(a)(1). The District
of Connecticut’s Local Rule is even more demanding of the moving
party. Local Rule 37 provides that a motion to compel shall not
be filed “unless counsel making the motion has conferred with
opposing counsel and discussed the discovery issues between them
in detail in a good faith effort to eliminate or reduce the area
of controversy, and to arrive at a mutually satisfactory
resolution.” D. Conn. L. Civ. R. 37(a). Thus, while the Federal
Rule may be satisfied by an attempt to confer, the Local Rule
cannot. “A certification from a movant that he has merely
attempted to meet and confer with opposing counsel does not
satisfy the requirements of the Local Rules. Rather, under Local
Rule 37(a), a movant must confer with opposing counsel and must
discuss discovery disputes in detail and in good faith.” Doe v.
Mastoloni, 307 F.R.D. 305, 313 (D. Conn. 2015).
“The purpose of the meet and confer requirement is to
resolve discovery matters without the court’s intervention to
the greatest extent possible. Only those matters that remain
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unresolved after serious attempts to reach agreement should be
the subject of a motion to compel.” Myers v. Andzel, No.
06CV14420(RWS), 2007 WL 3256865, at *1 (S.D.N.Y. Oct. 15, 2007).
Here, plaintiff’s counsel sent an email to defendant’s counsel
on August 18, 2015, and did not receive a response.2 No further
efforts were made to contact counsel for the defendant; counsel
for the plaintiff confirmed at the hearing that she did not
attempt to contact defendant’s counsel by phone. Counsel did not
confer, much less discuss the issues “in detail.” Rather,
plaintiff filed the Motion to Compel on September 18, 2015.
The Court finds that an award of fees and costs is not
warranted on this record. As noted, Rule 37 of both the Federal
and Local Rules require a good faith effort by moving counsel to
confer with opposing counsel before filing a motion to compel.
Plaintiff has not made that showing here. A single email, to
which no response is received, is not sufficient to satisfy the
Federal Rule and falls far short of satisfying the Local Rule.
See, e.g., Saliga v. Chemtura Corp., No. 3:12CV832(VAB), 2015 WL
851849, at *2 (D. Conn. Feb. 26, 2015) (“The plaintiff’s cursory
communications fall short of meeting her obligation to meet and
confer. Her effort was perfunctory. Counsel never had any
meaningful dialogue.”).

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Counsel for the defendant stated at the hearing that she did
not recall receiving the email.
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Accordingly, plaintiff’s Motion for Costs and Fees [Doc.
#37] is DENIED.
Scheduling Order
During the conference, the parties and the Court also
discussed the need for an updated scheduling order. The
following deadlines are hereby set in this case, with the
consent of the parties.
Discovery closes on November 16, 2015. The parties
confirmed at the conference that they will complete all
discovery by this deadline.
Plaintiff will provide any outstanding Rule 26(a) initial
disclosures on or before October 9, 2015.
Plaintiff will provide responses to any other outstanding
discovery on or before October 19, 2015.
Counsel for the plaintiff indicated an intent to notice the
depositions of four witnesses; those notices will be issued
forthwith to ensure the depositions will be completed before the
November 16, 2015, deadline.
Counsel for the defendant indicated that she may need to
conduct a continued deposition of plaintiff; any such continued
deposition shall also be noticed forthwith and completed before
November 16, 2015.

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Dispositive motions, if any, shall be filed on or before
December 15, 2015.
The parties shall contact the court immediately if issues
arise that may impact these deadlines.
This is not a recommended ruling. This is a discovery
ruling and case management order which is reviewable pursuant to
the “clearly erroneous” statutory standard of review. See 28
U.S.C. ' 636 (b)(1)(A); Fed. R. Civ. P. 6(a), 6(e) and 72(a);
Rule 2 of the Local Rules for United States Magistrate Judges.
As such, it is an order of the Court unless reversed or modified
by the district judge upon motion timely made.
SO ORDERED at New Haven this 30th day of September 2015.

/s/ ______________________
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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