Merial Limited et al v. VELCERA INC et al

Filing 72

ORDER denying 57 Motion for Sanctions. Ordered by Judge Clay D. Land on 07/13/2012 (ajp).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
MERIAL LIMITED, and
MERIAL SAS,

*
*

Plaintiffs,
Counterclaim Defendants,

*

vs.

*
CASE NO. 3:11-CV-157 (CDL)

VELCERA, INC., and
FIDOPHARM, INC.,

*
*

Defendants,
Counterclaim Plaintiffs.

*

O R D E R
Plaintiffs

Merial

Limited

and

Merial

SAS

(collectively,

“Merial”) filed this action against Defendants Velcera, Inc. and
FidoPharm, Inc. (collectively, “Velcera”), claiming Defendants
violated the Lanham Act, 15 U.S.C. § 1125, and Georgia law.
Velcera
under

responded

the

Lanham

by
Act

asserting
and

counterclaims

Georgia

law.

against

Velcera

Merial

filed

the

presently pending Motion for Sanctions (ECF No. 57), asking the
Court to exercise its inherent authority to impose sanctions
against Merial for filing a motion to compel discovery in bad
faith.

For the following reasons, Velcera’s motion is denied.
FACTUAL BACKGROUND

Merial filed the Emergency Motion to Compel Production of
Documents and Things, which is the subject of Velcera’s pending

motion for sanctions, on March 21, 2012, contending that Velcera
had yet to produce any documents in the action.

See generally

Merial’s Emergency Mot. to Compel Produc. of Docs. & Things, ECF
No. 38.

Merial

emergency

claimed

motion

that the circumstances warranted an

because

Merial

needed

Velcera

to

produce

relevant documents in time for Merial to prepare its burden of
proof expert reports, which were due on April 12, 2012.

Id. at

1-2.
Merial certified in the motion to compel that it had in
good faith attempted to confer with Velcera to obtain Velcera’s
documents

without

Specifically,

on

Court
March

intervention.
2,

2012,

See

counsel

id.

for

at

1

both

n.1.

parties

discussed the fact that Velcera had not produced any documents
in the case.

Merial’s Resp. in Opp’n to Velcera’s Mot. for

Sanctions Ex. 1, Rosenberg Decl. ¶ 5, ECF No. 63-1.
counsel

indicated

Velcera

did

not

want

to

Velcera’s

begin

document

production prior to the Court’s entry of a protective order,
Rosenberg Decl. Ex. C, Email from M. French to J. Rosenberg 2
(Mar.

6,

2012),

ECF

No.

63-1,

and

the

Court

entered

the

Protective Order on March 8, 2012, Protective Order, Mar. 8,
2012, ECF No. 36.

On March 12, 2012, counsel for both parties

met

regarding

and

commence
Counsel

conferred
its
for

document
Velcera

Velcera’s

production.

represented

2

to

continued
Rosenberg

counsel

for

failure
Decl.
Merial

¶

to
7.

that

Velcera would start producing documents the week of March 19,
2012.

Id.
When

March

19,

2012

arrived,

Merial

asked

Velcera

Merial could expect to receive Velcera’s documents.

when

Rosenberg

Decl. Ex. D, Email from K. Bina to J. Wargo 1 (Mar. 19, 2012),
ECF No. 63-1.
issue

at

Velcera suggested that the parties discuss the

a

proposed

meet

and

confer

responses.

Rosenberg Decl. Ex. E., Email from J. Wargo to K.

(Mar.

19,

2012),

ECF

No.

Merial’s

address

perceived

1

in

to

Velcera’s

Bina

deficiencies

intended

63-1.

discovery

Merial’s

counsel

communicated to Velcera that any issue Velcera had with Merial’s
discovery responses was independent of “[V]elcera’s long overdue
production of documents, which [V]elcera said it would produce
this week.”

Rosenberg Decl. Ex. G, Email from F. Smith to J.

Wargo 1 (Mar. 19, 2012), ECF No. 63-1.
[V]elcera

and

its

lawyers

to

keep

Merial “expect[ed]

their

word

and

begin

production of the documents now,” and expressed to Velcera that
“[i]f [V]elcera intend[ed] to delay its production” any longer,
then Merial would “go to the [C]ourt as quickly as possible.”
Id.

Velcera’s counsel responded by stating “[y]ou have our

response.”

Rosenberg Decl. Ex. H, Email from J. Wargo to F.

Smith 1 (Mar. 19, 2012), ECF No. 63-1.
In
compel.

light

of

Velcera

this

response,

ultimately,

Merial

however,

3

filed

its

produced

motion

to

responsive

documents to Merial, and Merial subsequently filed a motion to
withdraw the motion to compel.

Merial’s Notice of Withdrawal of

Emergency Mot. to Compel 3, ECF No. 56.

Velcera’s motion for

sanctions followed.
DISCUSSION
“One aspect of a court’s inherent power is the ability to
assess

attorneys’

attorney,

or

fees

both,

and

when

costs

against

either

has

the

client

acted

in

or

bad

vexatiously, wantonly, or for oppressive reasons.”

his

faith,

Byrne v.

Nezhat, 261 F.3d 1075, 1106 (11th Cir. 2001), abrogated on other
grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639,
661 (2008)

(internal quotation marks omitted).

The “key to

unlocking a court’s inherent power is a finding of bad faith.”
Id. (internal quotation marks omitted).
inherent

power

restraint

and

is

so

potent,

discretion.”

it
Id.

should

“Because the court's
be

(internal

exercised
quotation

with
marks

omitted).
Velcera argues that Merial filed the motion to compel in
bad

faith

and

in

violation

of

the

Federal

Rules

of

Civil

Procedure and the Court’s Local Rules because Merial refused
Velcera’s offer to conduct a good faith meet and confer before
filing the motion.

The Court finds, however, that the issue of

the timing of Velcera’s document production had already been the
subject of meet and confer discussions between the parties and

4

Merial filed its motion only after Velcera indicated it would
not begin producing documents the week of March 19, 2012, as
previously agreed by the parties.1

The Court finds Merial’s

conduct does not warrant a finding of bad faith under these
circumstances.
Velcera also contends that Merial should have withdrawn its
motion to compel before Velcera was required to respond to it
because Velcera had started producing documents.
overlooks

the

fact

that

Velcera’s

failure

This argument

to

produce

any

documents on the date agreed on by the parties created the need
for Merial to file the motion to compel in the first place, and
the Court concludes that Merial’s failure to withdraw the motion
before

Velcera

submitted

a

response

was

not

in

bad

faith.

Further, Merial withdrew the motion before it was submitted to
the Court.

The Court finds sanctions are not warranted.

1

Velcera points to a letter from Merial’s counsel addressed the day
Merial filed the motion to compel, arguing the letter shows Merial did
not meet and confer with Velcera before filing the motion to compel.
In the letter, Merial’s counsel states: “[a]s you are aware, Merial
has today filed a motion to compel relating to Velcera’s failure to
produce any documents in this case.
However, Merial will also be
sending a follow-up communication under separate cover to more
formally meet and confer on the other specific deficiencies in
Velcera’s discovery responses.”
Defs.’ Br. in Resp. to Pls.’
Emergency Mot. to Compel Ex. 2, Letter from J. Rosenberg to J. Wargo
4-5 (Mar. 21, 2012), ECF No. 49-2. Contrary to Velcera’s assertions,
this letter does not indicate to the Court that Merial did not meet
and confer with Velcera prior to filing the motion to compel regarding
the issue of Velcera’s failure to start any document production. The
letter simply acknowledges that Merial had yet to formally meet and
confer with Velcera to address specific issues Merial had with the
discovery responses Velcera provided.

5

CONCLUSION
For

the

reasons

explained

above,

Velcera’s

Motion

for

Sanctions (ECF No. 57) is denied.
IT IS SO ORDERED, this 13th day of July, 2012.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

6