Altimas et al v. Whitney et al

Filing 261

ORDER granting 257 Defendant, National Credit Union Administration Boards Motion to Compel. The Plaintiff, Orris Rodahl has up to and including October 1, 2012, to file answers to the interrogatories and produce the requested production in compli ance with the Federal and Local Rules of Civil Procedure.Defendant, National Credit Union Administration Board's Motion for Attorneys Fees and Costs for bringing the Motion is DENIED. Signed by Magistrate Judge Sheri Polster Chappell on 9/11/2012. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
THOMAS L. ALTIMAS, et al.,
Plaintiffs,
-vs-

Case No.: 2:09-cv-682-FtM-99SPC

RUSSELL WHITNEY, et al.,
Defendants.
_______________________________________/

ORDER
This matter comes before the Court on Defendant, National Credit Union Administration
Board, in its Capacity as Liquidating Agent for Huron River Area Credit Union’s, Motion to
Compel Discovery Directed to Plaintiff, Orris Rodahl (Doc. # 257) filed on August 20, 2012.
Defendant seeks an Order compelling Plaintiff, Orris Rodahl, to provide complete answers to
Defendant’s Interrogatories and copies of documents responsive to Defendant’s Request for
Production of Documents, that were served upon Plaintiff on June 15, 2012. (Doc. # 257, p. 2).
Pursuant to M.D. Fla. Local Rule 3.01(g), Defendant certifies that it was unable to “make a
reasonable effort to confer with Plaintiff in a good faith effort to resolve by agreement the relief
and issues raised herein in that Plaintiff’s counsel has withdrawn, and neither opposing counsel’s
Motion for Leave to Withdraw, nor the Order granting the Motion for Leave to Withdraw, sets
forth the telephone number and/or the email address of the Plaintiff.” (Doc. # 257, p. 2–3).
Under the Local Rules of this District, a movant must first confer with the opposing party
to determine whether or not the requested relief is opposed. The Local Rule reads in pertinent
part:

[b]efore filing any motion in a civil case, except a motion for injunctive relief, for
judgment on the pleadings, for summary judgment, to dismiss or to permit
maintenance of a class action, to dismiss for failure to state a claim upon which
relief can be granted, or to involuntarily dismiss an action, the moving party shall
confer with counsel for the opposing party in a good faith effort to resolve the
issues raised by the motion, and shall file with the motion a statement (1)
certifying that the moving counsel has conferred with opposing counsel and (2)
stating whether counsel agree on the resolution of the motion. A certification to
the effect that opposing counsel was unavailable for a conference before filing a
motion is insufficient to satisfy the parties’ obligation to confer. The moving
party retains the duty to contact opposing counsel expeditiously after filing and to
supplement the motion promptly with a statement certifying whether or to what
extent the parties have resolved the issue(s) presented in the motion.
M.D. Fla. Local Rule 3.01(g) (emphasis added). The Rule states clearly that a “certification to
the effect that opposing counsel was unavailable for a conference before filing a motion is
insufficient to satisfy the parties’ obligation to confer.” Thus, Local Rule 3.01(g) imposes a
mandatory requirement that counsel confer with opposing counsel prior to filing its motion with
this Court. This is not a permissive requirement and is more than simply trying to contact
opposing counsel.
Defendant asserts that it was unable to make a reasonable effort due to the absence of a
telephone number and/or email address for Orris Rodahl in the Motion for Leave to Withdraw or
the Order granting the Motion for Leave to Withdraw. (Doc. # 257, p. 2–3). However, Plaintiff
Orris Rodahl’s physical address was available to the Defendant, and with such availability, the
Defendant was obligated to send physical correspondence to Orris Rodahl prior to filing its
Motion with this Court in order to comply with the obligations imposed by Local Rule 3.01(g).
Orris Rodahl’s physical address, as listed on the main docket page, is 11555 Lower Gull Lake
Dr., Brainerd, MN 54601. In the absence of compliance with Local Rule 3.01(g), this Court must
deny Defendant’s Motion to Compel without prejudice. In the future, failure to comply with the
Court’s Local Rules will result in the denial of the Motion without further consideration.

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Regarding the Motion to Compel, the Federal Rules state that, “[t]he party upon whom
the request [for production] is served shall serve a written response within 30 days after the
service of the request.” Fed. R. Civ. P. 34(b). Likewise, a party upon whom interrogatories have
been served has 30 days to respond either by filing answers or objections to the propounded
interrogatories. Fed. R. Civ. P. 33(b). If the serving party does not receive a response to their
interrogatories and request for production, then the serving party may request an order
compelling disclosure. Fed. R. Civ. P. 37(a). Whether or not to grant the motion to compel is at
the discretion of the trial court. Commercial Union Insurance Co. v. Westrope, 730 F.2d 729,
731 (11th Cir. 1984).
The Plaintiff was represented by counsel when the discovery requests were served on
June 15, 2012. The responses were due by July 15, 2012. The Plaintiff’s counsel was given
leave to withdraw on August 20, 2012. (Doc. # 256). Thus, the Plaintiff was represented by
counsel when his responses to the discovery were due. The Plaintiff knew the discovery was due
and failed to respond to the requests. As such, the Motion to Compel is due to be granted.
In addition to the Motion to Compel answers to the interrogatories and requests for
production of documents, the Defendant also moves for sanctions for fees and costs for bringing
the instant Motion pursuant to Fed. R. Civ. P. 37(a)(4)(A). Under Rule 37, the Court may deny a
request for expenses “if it determines that opposition to the motion was substantially justified or
that other circumstances would make an award of expense[s] unjust.” Reedy v. Lull Engineering
Co., Inc., 137 F.R.D. 405, 409 (M.D. Fla. 1991).

At this point in the proceedings, the Court

does not find just cause that would require the Court to impose attorney’s fees and sanctions. The
Defendant failed to confer with the Plaintiff prior to bringing the instant Motion, therefore there
was no attempt to confer and possibly eliminate the need to file the Motion.

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Accordingly, it is now ORDERED:
(1) Defendant, National Credit Union Administration Board’s Motion to Compel (Doc. #
257) is GRANTED. The Plaintiff, Orris Rodahl has up to and including October 1,
2012, to file answers to the interrogatories and produce the requested production in
compliance with the Federal and Local Rules of Civil Procedure.
(2) Defendant, National Credit Union Administration Board’s Motion for Attorney’s
Fees and Costs for bringing the Motion is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 10th

Copies:
Counsel of Record

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day of September, 2012.