Mirlis v. Greer et al

Filing 50

ORDER granting plaintiff's motion 43 to compel. See attached ruling. Signed by Judge Donna F. Martinez on 11/30/16. (Constantine, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ELIYAHU MIRLIS,
Plaintiff,
v.
RABBI DANIEL GREER, et al.,
Defendants.

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CASE NO. 3:16cv678(MPS)

RULING ON MOTION TO COMPEL
Pending before the court is the plaintiff's motion to compel
pursuant to Fed.R.Civ.P. 37.1 (Doc. #43.)

The motion is granted

absent objection or response of any kind.
On September 20, 2016, the plaintiff served interrogatories
and requests for production on defendant Daniel Greer.
A

party

must

answer

or

object

to

interrogatories

production requests within thirty days after being served.

and

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." Spencer v. Kenny, No. 3:11CV50(RNC), 2015 WL 6958009, at *1
(D. Conn. Nov. 10, 2015).

See Rule 33(b)(4); Oliphant v. Villano,

No. 3:09CV862(JBA), 2010 WL 4909238, at *3 (D. Conn. Nov. 24, 2010)
("The failure to respond or object to a discovery request in a
timely manner waives any objection that may have been available.");

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U.S. District Judge Michael P. Shea referred the motion to
the undersigned. (Doc. #46.)

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 thirty day deadline passed.

The defendant neither filed

a motion for extension of time nor responded to the discovery
requests.
On November 1, 2016, the plaintiff filed the instant motion to
compel.

The defendant still did not respond.

The defendant's

opposition to the motion was due 21 days thereafter - on November
22, 2016.

See D. Conn. L. Civ. R. 7(a)1 ("memoranda in opposition

to any motion shall be filed within twenty-one (21) days of the
filing of the motion.")

"Failure to submit a memorandum in

opposition to a motion may be deemed sufficient cause to grant the
motion . . . ." D. Conn. L. Civ. R. 7(a)1.

The deadline passed and

the defendant did not file anything in response to the plaintiff's
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motion to compel.
The plaintiff's motion to compel is GRANTED.

Because the

defendant asserted no objections, he therefore has waived all
objections.
this order.

The defendant's compliance is due within 14 days of
See D. Conn. L. Civ. R. 37(d).

Failure to comply with

the court's order may, and likely will, result in the imposition of
sanctions, up to and including dismissal.
Pursuant to Rule 37, 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 . . . whose conduct necessitated the
motion, . . . to pay the movant's reasonable expenses incurred in
making

the

motion,

including

37(a)(5)(A)(emphasis added).

attorney's

fees."

Fed.R.Civ.P.

An award of expenses is mandatory

unless "(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).

None of the exceptions apply.

The plaintiff's affidavit

demonstrates that he sought to obtain the discovery without court
intervention.

As to the two other exceptions, where the defendant

neither responded to discovery requests or to the subsequent motion
to compel, he has not met his burden of showing that his conduct

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was substantially justified or that circumstances make an award of
attorneys'

fees

unjust.

See

Fed.R.Civ.P.

circumstances, the court must award fees.

37.

Under

these

Counsel are strongly

encouraged to come to agreement as to the amount of fees. If they
are unable to, the plaintiff may submit an affidavit itemizing any
reasonable expenses incurred in filing the present motion for which
he requests reimbursement.

The defendant may file an objection

within 21 days as to the amount of the requested award.
Defense counsel is ordered to serve a copy of this ruling on
his client.
This is not a recommended ruling.

This is a discovery ruling

or order which is reviewable pursuant to the "clearly erroneous"
statutory

standard

of

review.

28

U.S.C.

§

636(b)(1)(A);

Fed.R.Civ.P. 72(a); and Rule 72.2 of the Local Rules for 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 this 30th day of November 2016, at Hartford,
Connecticut.
___________/s/________________
Donna F. Martinez
United States Magistrate Judge

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