Merchant Ivory Productions (USA), Inc. et al v. Donaldson

Filing 26

ORDER granting 25 Motion to Compel, Motion to Extend Discovery Deadlines. Donaldson has twenty one days from the date this Order is served to respond to all plaintiff's discovery requests and provide a date for his deposition. He must also pa y plaintiff's reasonable motion to compel expenses. Plaintiff must submit an itemized list of expenses, including attorney's fees, within fourteen days from the date of this Order is served. Donaldson will then have ten days thereafter to contest plaintiff's itemization. Signed by Magistrate Judge G. R. Smith on 2/18/2016. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
MERCHANT IVORY
PRODUCTIONS (USA), INC. and
JAMES IVORY,
Plaintiffs,
Case No. CV414-240

v.

JOHN GILBERT DONALDSON, JR.
a/k/a GIL DONALDSON,
Defendants.

ORDER
Plaintiffs Merchant Ivory Productions (“Merchant”) and James
Ivory sued defendant John Gilbert Donaldson, a former director of
Merchant, for a variety of fraud-related claims related to his sale of a
Paris, France apartment on Merchant’s behalf. Doc. 1. After Donaldson
answered, plaintiffs served discovery but received no response. They
thus move to compel. 1 Doc. 25. Upon review, the Court finds the motion

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Plaintiffs also “move for an order extending Local Rule 7.1’s page limitation,”
pointing out that their compel motion’s brief only exceeds that limit because it
complies with Rule 26.5’s requirement that “every discovery request at issue be
quoted verbatim.” Doc. 25 at 1. That motion is GRANTED and plaintiffs’ brief is
accepted in full.

supported and the discovery ( e.g. , interrogatories and requests for
production seeking banking information and financial records of the
transactions underlying plaintiffs’ claims, doc. 25 at 8-34) relevant and
appropriate.
Donaldson, however, also failed to respond to the motion. See doc.
25 (“Responses due by 2/8/2016”). Because it is supported and
unopposed per Local Rule 7.5 (no response means no opposition),
defendants’ motion to compel is GRANTED . Doc. 25. Donaldson must
respond to plaintiffs’ written discovery requests, and provide a date for
his deposition, within twenty-one days after the date this Order is
served.
Defendant’s intransigence in responding to legitimate discovery
requests has also caused the discovery period to expire. See doc. 24 at 1
(discover due by January 28, 2016). Hence, plaintiffs request a sixty day
extension beyond the twenty-one days the Court has given Donaldson to
respond to their discovery requests. Doc. 25 at 35. That request is

GRANTED .
Plaintiffs do not seek Rule 37 sanctions for Donaldson’s failure to
respond (they do expressly ask for fees and expenses for “future

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discovery transgressions, doc. 25 at 36). Payment of expenses (including
attorney’s fees), however, typically is mandatory when, “after giving an
opportunity to be heard,” courts grant motions to compel. Fed. R. Civ. P.
37(a)(5)(A). Only if (1) “the movant filed the motion before attempting
in good faith to obtain the . . . discovery without court action;” (2) the
failure to respond was justified; or (3) “other circumstances make an
award of expenses unjust, may a court decline to award expenses to a
prevailing party. Id.
None of those exceptions apply here and Donaldson had his chance
to be heard. Consequently, the Court ORDERS that he pay plaintiffs’
“reasonable expenses incurred in making” their motion to compel,
“including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). Plaintiffs must
submit an itemized list of expenses and fees within fourteen days of the
date this Order is served so the Court can evaluate their reasonableness
and issue an expense award. 2

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Upon motion, courts can levy sanctions beyond fees and expenses against parties
who, “after being properly served with interrogatories under Rule 33 or a request for
inspection under Rule 34, fail[] to serve . . . answers, objections, or written
responses.” Fed. R. Civ. P. 37(d)(1). Those sanctions can include “rendering a
default judgment against the disobedient party.” Id. at (d)(3) & (b)(2)(A)(vi); United
States v. Certain Real Property Located at Route 1, Bryant, Ala. , 126 F.3d 1314, 1317
(11th Cir. 1997) (“Rule 37(d) deals with sanctions used when a party fails to
cooperate in discovery and “allows the court to strike out pleadings and render

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To summarize: plaintiffs’ motions to compel (doc. 25), to exceed
page limits, and to extend discovery are GRANTED . Donaldson has 21
days from the date this Order is served to respond to all of plaintiffs’
discovery requests and provide a date for his deposition. He also must
pay plaintiffs’ reasonable motion to compel expenses. Plaintiffs must
submit an itemized list of expenses, including attorney’s fees, within 14
days from the date this Order is served. Donaldson will then have 10
days thereafter to contest plaintiffs’ itemization.

SO ORDERED, this 18th day of February, 2016.

UNITED STATES MAGISTRATE ILJDGE
SOUTHERN DISTRICT OF GEORGIA

default judgment against the disobedient party.”). If Donaldson fails to comply with
this Order and that noncompliance “is due to willful or bad faith disregard” for this
Court’s authority, Cox v. Am. Cast Iron Pipe Co. , 784 F.2d 1546, 1556 (11th Cir.
1986), the undersigned will not hesitate to recommend the ultimate sanction if
plaintiffs’ so move. Cf. Malautea v. Suzuki Motor Co. , 987 F.2d 1536, 1542 (11th Cir.
1993) (affirming this Court’s imposition of a default judgment and other sanctions on
a willfully disobedient defendant).

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