Menendez et al v. Wal-Mart Stores, Inc. et al

Filing 289

OPINION AND ORDER DENYING 288 MOTION to Compel DEFENDANT JLG INDUSTRIES, INC. and MOTION TO SHORTEN BRIEFING SCHEDULE filed by Marla Melissa Menendez, Marlene Menendez Manciallas, Adelfa Mancillas Menendez, Humberto Gustavo Menendez, Grisell Menendez Mancillas. The motion can be renewed as outlined. Signed by Magistrate Judge Roger B Cosbey on 7/30/2012. (lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

HUMBERTO GUSTAVO MENENDEZ
deceased by Marla Melissa Menendez
representative, et al.,
Plaintiffs,
v.
WAL-MART STORES EAST LP, et al.,
Defendants.

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CAUSE NO. 1:10-CV-53

OPINION AND ORDER
Before the Court is Plaintiffs’ motion to compel Defendant JLG Industries, Inc. (Docket #
288), requesting that the Court compel JLG to fully respond to their request for the production of
documents. Because Plaintiffs failed to comply with Local Rule 37-1(a), the motion will be
DENIED.
A. Procedural Background
Defendants timely removed this negligence action from Hidalgo County, Texas, District
Court to federal court in the Southern District of Texas on November 26, 2008, under 28 U.S.C. §
1332(a). (Docket # 1.) On February 11, 2010, the case was transferred to the Northern District of
Indiana. (Docket # 116.)
On June 8, 2010, the Court conducted a scheduling conference and set an August 1, 2011,
deadline for the completion of all discovery. (Docket # 160.) This deadline has since been extended
to: September 15, 2012, for the completion of fact discovery; October 15, 2012, for expert
disclosures and reports by Plaintiffs and December 15, 2012, by Defendants; and February 15, 2013,
for the completion of all discovery. (Docket # 206, 213, 216, 246, 277.)

Plaintiffs filed the instant motion to compel on July 27, 2012 (Docket # 288), contending that
JLG produced “only partial documents” in response to their February 29, 2012, request for
production of documents. Plaintiffs contend that they need these documents prior to the deposition
of JLG’s corporate representative, which is scheduled for August 14, 2012.
B. Discussion
Local Rule 37-1(a) requires that “[a] party filing any discovery motion must file a separate
certification that the party has conferred in good faith or attempted to confer with other affected
parties in an effort to resolve the matter raised in the motion without court action.” The certification
shall include the date, time, and place of the conference or attempted conference and the names of all
persons participating. N.D. Ind. L.R. 37-1(a).
“A good faith effort to resolve a discovery dispute requires that counsel converse, confer,
compare views, consult and deliberate.” Imbody v. C & R. Plating Corp., No. 1:08-cv-218, 2010 WL
3184392, at *1 (N.D. Ind. Aug. 10, 2010) (citation and internal quotation marks omitted); Ellis v.
CCA of Tenn., LLC, No. 1:08-cv-0254-SEB-JMS, 2009 WL 234514, at *2 (S.D. Ind. Feb. 2, 2009)
(citation omitted). “The requirement to meet and confer must be taken seriously, because ‘before the
court can rule on a motion, the parties must demonstrate they acted in good faith to resolve the issue
among themselves.’” Imbody, 2010 WL 3184392, at *1 (quoting Robinson v. Potter, 453 F.3d 990,
995 (8th Cir. 2006)).
Here, Plaintiffs failed to comply with L.R. 37-1(a), as they did not file a separate
certification stating that they had conferred in good faith or attempted to confer with JLG in an effort
to resolve the matter without court action. Instead, the motion and supporting materials show that
Plaintiffs’ counsel merely sent several letters to JLG’s counsel. (Mot. to Compel 2.)
Several letters sent to counsel, however, falls short of a good faith attempt at a conference.
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See Imbody, 2010 WL 3184392, at *1 (concluding that several letters exchanged between counsel
was not a good faith conference); Shoppell v. Schrader, No. 1:08-cv-284, 2009 WL 2515817, at *1-2
(N.D. Ind. Aug. 13, 2009) (finding that a telephone call and a letter was not a good faith
conference); Pinkham v. Gen. Prods. Corp., No. 1:07-cv-174, 2007 WL 4285376, at *1 (N.D. Ind.
Dec. 3, 2007) (concluding that an exchange of five letters was not a good faith conference); see also
Forest River Hous., Inc. v. Patriot Homes, Inc., No. 3:06-cv-841, 2007 WL 1376289, at *2 (N.D.
Ind. May 7, 2007) (“[T]wo emails . . . do not constitute meaningful discussion or serious
negotiations to resolve the disputed discovery issue.”). Letters merely “recit[ing] each parties’
general stance on the issue rather than any type of bartering or negotiations . . . does not represent
meaningful dialogue or show an attempt at a such dialogue to satisfy Fed. R. Civ. P. 37(a).” In re
FedEx Ground Package Sys., Inc., No. 3:05-MD-527, 2007 WL 79312, at *7 (N.D. Ind. Jan. 5,
2007).
To reiterate, “[t]he requirement to meet-and-confer must be taken seriously, because before
the court can rule on a motion, the parties must demonstrate they acted in good faith to resolve the
issue among themselves.” Garcia v. Aartman Transp. Corp., No. 4:08-cv-77, 2010 WL 2427571, at
*4 (N.D. Ind. June 4, 2010) (citation and internal quotation marks omitted). “The parties are
reminded that discovery is supposed to be a cooperative endeavor, requiring minimal judicial
intervention.” C.A. v. Amli at Riverbend LP, No. 1:06-cv-1736-SEB-JMS, 2008 WL 1995451, at *2
(S.D. Ind. May 7, 2008) (citing Airtex Corp. v. Shelley Radiant Ceiling Co., 536 F.2d 145, 155 (7th
Cir. 1976)).
Consequently, Plaintiffs’ motion to compel will be denied for failing to comply with Local
Rule 37-1(a).

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C. Conclusion
For the foregoing reasons, Plaintiffs’ Motion to Compel Defendant JLG Industries, Inc., and
Motion to Shorten Briefing Schedule (Docket # 288) is DENIED. The motion can be renewed, if
necessary, after counsel conduct a conference, or Plaintiffs show that a conference was attempted.
See Shoppell, 2009 WL 2515817, at *2.
SO ORDERED.
Enter for the 30th day of July, 2012.
S/Roger B. Cosbey
Roger B. Cosbey
United States Magistrate Judge

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