Hauser v. General Cable Industries, Inc.

Filing 38

ORDER granting #33 defendant's motion to compel. See attached order. Signed by Judge Donna F. Martinez on 5/25/2017. (Constantine, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DAVID HAUSER,

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Plaintiff,
v.
GENERAL CABLE INDUSTRIES,
INC.,
Defendant.

CASE NO. 3:16cv1694(RNC)

RULING ON DEFENDANT'S MOTION TO COMPEL
The plaintiff brings this action against his former employer,
General

Cable

Industries,

Inc.,

alleging

that

the

defendant

violated the Family Medical Leave Act, 29 U.S.C. § 2612 et seq. and
the Connecticut Fair Employment Practices Act, Conn Gen. Stat.
§ 46a-60 et seq.

Pending before the court is the defendant's

motion to compel.1

(Doc. #34.)

I.

Procedural Background
On December 14, 2016, the defendant served its First Set of

Discovery Requests. The plaintiff's responses were due January 13,
2017.

Fed. R. Civ. P. 33(b)(2), 34(b)(2)(A).

On December 27,

2016, the plaintiff filed a motion for extension of time until
February 13, 2017 in which to respond to the requests.
The court granted the motion.

(Doc. #21.)

(Doc. #23.)

When plaintiff did not meet the deadline, defense counsel both
called and emailed plaintiff's counsel.

1

(Doc. #34, Baskin Aff.

U.S. District Judge Robert N. Chatigny referred the motion to
the undersigned. (Doc. #35.)

¶6.)

On

February

28,

2017,

plaintiff's

counsel

responses to defendant's discovery requests.
On

March

counsel

6,

regarding

responses.

2017,

defense

deficiencies

in

(Baskin Aff. ¶11.)

conferred.

(Baskin Aff. ¶13.)

counsel
the

served

some

(Baskin Aff. ¶7.)

contacted

plaintiff's

plaintiff's

discovery

On March 10, 2017, the parties
Plaintiff's counsel stated that he

would speak to the plaintiff in the next couple of days and agreed
to produce all outstanding information.

(Baskin Aff. ¶13.)

As of March 20, 2017, defense counsel still had not received
plaintiff's
counsel.

supplemental

responses

(Baskin Aff. ¶14.)

and

contacted

plaintiff's

On March 28, 2017, counsel spoke.

(Baskin Aff. ¶16.) Plaintiff's counsel disclosed that he had been
unable

to

reach

his

client.

He

said

that

the

supplemental

responses would be provided once he was able to contact the
plaintiff.

(Baskin Aff. ¶16.)

On April 7, 2017, defense counsel again contacted plaintiff's
counsel regarding the outstanding discovery responses.
Aff. ¶18.)

Plaintiff's counsel reported that he was still unable

to reach his client but had sent him a certified letter.
Aff.

¶19.)

responses.2

(Baskin

Plaintiff's

counsel

produced

some

(Baskin

supplemental

(Doc. #34, Ex. I.)

2

As to some requests, the plaintiff asserted an objection and
then provided a response "subject to" or "without waiving" the
objection. This practice leaves the requesting party uncertain as
to whether the opposing party has fully answered its request and,
importantly, is not contemplated by the Federal Rules of Civil
2

II.

Discussion
On April 24, 2017, the defendant filed the instant motion. As

relief, the defendant seeks to compel the plaintiff to provide
complete responses to Interrogatories 4, 7, 10, 11, 13, 14, 15 and
17 and Requests for Production 13, 15, 17, 23 and 35 - 37.

The

defendant also requests an award of attorney's fees pursuant to
Fed. R. Civ. P. 37(a)(5).
The plaintiff's opposition to the defendant's motion to compel
was due May 18, 2017.

See D. Conn. L. Civ. R. 7 ("memoranda in

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

The plaintiff filed nothing in

response to the defendant's motion.3
The defendant's motion to compel is GRANTED.

See D. Conn. L.

Procedure. As observed by Professor Moore, "[i]f the responding
party both answers and objects to the interrogatory at the same
time, the objection may be deemed waived, and the answer, if
responsive, will stand." 7 James Wm. Moore et al., Moore's Federal
Practice § 33.174[1], at p. 33-105 (3rd ed. 2014). As to requests
for production, Rule 34 was amended in 2015 to require that "[a]n
objection must state whether any responsive materials are being
withheld on the basis of that objection." See Rule 34(b)(2)(C).
3

On April 28, 2017, before the defendant's motion was ripe,
the court scheduled oral argument on the motion to be heard on June
21, 2017. (Doc. #36.) The order expressly notified the plaintiff
that "[t]he scheduling of oral argument does not relieve the
opposing party of its obligation to file responsive papers. If no
opposition is filed, oral argument may be canceled and the motion
may be granted." (Doc. #36.) The court subsequently rescheduled
oral argument to June 28, 2017 and again notified the plaintiff
that "if no opposition [to the motion to compel] is filed, oral
argument may be canceled and the motion may be granted." (Doc.
#37.)
3

Civ. R. 7 ("Failure to submit a memorandum in opposition to a
motion may be deemed sufficient cause to grant the motion . . . .")
Plaintiff shall serve complete responses to the discovery requests
at issue within 14 days of this order.

See D. Conn. L. Civ. R.

37(d)("Unless a different time is set by the Court, compliance with
discovery ordered by the Court shall be made within fourteen days
of the filing of the Court's order.").
The defendant also requests an award of attorneys' fees and
costs incurred in making the instant motion. If a motion to compel
discovery is granted,
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).
On the record before the court, no exception applies.
defendant's request is granted.

The

The parties shall meet and confer

in a good faith effort to reach an agreement on the amount of costs
and reasonable attorneys' fees incurred by the defendant in making
this motion.

If they are unable to reach an agreement, the

defendant may file an affidavit by June 14, 2017 itemizing the

4

costs and fees it seeks.

See, e.g., Arbor Hill Concerned Citizens

Neighborhood Association v. County of Albany, 522 F.3d 182, 183-84
(2d Cir. 2008)(in fee awards, court considers whether the rates at
which compensation is sought are those that a "reasonable, paying
client would be willing to pay" before multiplying that figure by
the number of reasonably expended hours).

Plaintiff's response as

to the amount requested is due within 21 days of the defendant's
application.
Litigants "have an obligation to comply with court orders."
Minotti v. Lensink, 895 F.2d 100, 103 (2d Cir. 1990).

Failure to

comply with court orders may, and likely will, result in the
imposition of sanctions.
the complaint.

4

Possible sanctions include dismissal of

See Fed. R. Civ. P. 37.4

Rule 37(b)(2)(A) provides:

If a party . . . fails to obey an order to provide or
permit discovery, including an order under Rule 26(f),
35, or 37(a), the court where the action is pending may
issue further just orders. They may include the
following:
(i) directing that the matters embraced in the order or
other designated facts be taken as established for
purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or
opposing designated claims or defenses, or from
introducing designated matters in evidence;
(iii)striking pleadings in whole or in part;
(iv) staying further proceedings until the order is
obeyed;
(v) dismissing the action or proceeding in whole or in
part;
(vi) rendering a default judgment against the disobedient
party; or
(vii)treating as contempt of court the failure to obey
5

Plaintiff's counsel shall serve a copy of this order on his
client.
SO ORDERED at Hartford, Connecticut this 25th day of May,
2017.
___________/s/________________
Donna F. Martinez
United States Magistrate Judge

any order except an order to submit to a physical or
mental examination.
6