Curry v. State of Georgia et al

Filing 23

ORDER denying Plaintiff's 21 Motion for Contempt. Signed by Magistrate Judge Brian K. Epps on 04/15/2015. (jah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
TERRANCE DEION CURRY,

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_________

Plaintiff,
v.
DEPUTY MICHAEL DAY, et al.,
Defendants.

CV 114-173

ORDER
_________
Plaintiff, an inmate incarcerated at Johnson State Prison in Wrightsville, Georgia, is
proceeding pro se and in forma pauperis in this civil rights case and previously filed two motions
attempting to compel discovery. (Doc. nos. 11, 18.) In denying both motions, the Court
explained to Plaintiff the procedure for obtaining discovery and the time limits within which a
party has to respond to properly submitted discovery requests. (See doc. nos. 17, 20.) In
particular, the last Order clearly stated that Defendant Day’s responses to Plaintiff’s discovery
requests were not due until March 16, 2015. (Doc. no. 20, p. 2.)
In a motion signed by Plaintiff on March 15, 2015, and filed by the Clerk of Court on March
19, 2015, Plaintiff seeks sanctions against Defendant Day for his alleged failure to comply with the
Order of this Court on February 6, 2015 and/or to compel the production of discovery information
from Defendant Day. (Doc. no. 21.) Although docketed by the Clerk of Court as a motion for
contempt, it is yet another motion to compel.
Based on the signature date of Plaintiff’s current motion and the date the Court entered its
Order denying the second motion to compel, it appears the current motion and second Order
crossed in the mail. Plaintiff thus did not have the benefit of the Court’s explanation that

Defendant’s discovery responses were not due until March 16, 2015, at the time he filed this
third discovery motion.

Importantly, Defendant Day states that he served responses and

objections to Plaintiff’s discovery requests on March 16, 2015. (Doc. no. 22, p. 2 ¶ 6.) If
Plaintiff had received the second discovery Order prior to filing the instant motion, he would
have known that Defendant had not violated any discovery rules at the time Plaintiff filed his
motion.
Plaintiff also would have been reminded that his current discovery motion does not
comply with Local Rule 26.5, which provides as follows:
If Plaintiff wishes to file a motion to compel pursuant to Fed. R. Civ. P.
37, he should first contact the attorney for the defendant and try to work out the
problem; if Plaintiff proceeds with the motion to compel, he should file a
statement certifying that he has contacted opposing counsel in a good faith effort
to resolve any dispute about discovery. Loc. R. 26.5.
(Doc. no. 20, p. 3 (citing doc. no. 7, p. 5).)
The duty-to-confer prerequisite is not an empty formality. Merritt v. Marlin Outdoor
Advert. Ltd., CV 410-053, 2010 WL 3667022, at *4 (S.D. Ga. Sept. 15, 2010). Moreover, one
letter or discovery request, which simply demands that Defendant accede to every demand for
information from Plaintiff, can hardly be considered to qualify as a good faith effort to confer
and attempt to resolve a dispute. See Naviant Marketing Solutions, Inc. v. Larry Tucker, Inc.,
339 F.3d 180, 186-87 (3d Cir. 2003) (recognizing requirement for good faith effort at conferring
about dispute, not simply demanding acquiescence); Williams v. Board of County Comm’rs of
Unified Gov’t of Wyandotte County and Kansas City, Kan., 192 F.R.D. 698, 699-700 (D. Kan.
2000) (single letter between counsel which addresses discovery dispute does not satisfy duty to
confer); Porter v. Brancato, No. Civ. A. 96-2208-KHV, 1997 WL 150050, at *1 (D. Kan. Feb.

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24, 1997) (“‘A reasonable effort to confer’ means more than mailing a letter to opposing
counsel.”)
Failure to include such good faith certification, or to make the requisite good faith effort,
amounts to a failure to comply with Federal Rule 37(a)(1) and Local Rule 26.5 and warrants
denial of the discovery motion. See Holloman v. Mail-Well Corp., 443 F.3d 832, 844 (11th Cir.
2006) (affirming denial of discovery motion based on “a failure to work with the defendants in
good faith” during discovery process); Haynes v. JPMorgan Chase Bank, N.A., 466 F. App’x
763, 765-66 (11th Cir. 2012) (affirming denial of motion to compel where movant failed to
consult in good faith with opponent before filing motion); see also Layfield v. Bill Heard
Chevrolet Co., 607 F.2d 1097, 1099 (5th Cir. 1979)1 (holding that failure to comply with the
Local Rules may result in summary denial of a motion).
For all of these reasons, the Court DENIES the “Motion for Contempt,” which is actually
a motion to compel discovery from Defendant Day. (Doc. no. 21.) If Plaintiff is dissatisfied
with Defendant Day’s discovery responses served on March 16, 2015, he should attempt in good
faith to resolve the matter with Mr. Ellington, and if that does not work, he should file a
discovery motion that complies with the Local Rules.
SO ORDERED this 15th day of April, 2015, at Augusta, Georgia.

1

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions that were handed down
prior to the close of business on September 30, 1981.
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