Fowler et al v. New Werner Co et al

Filing 71

OPINION AND ORDER GRANTING 70 MOTION to Compel Pursuant to N.D. IND. L. R. 37 by Defendants Lowe's Companies Inc, Lowe's Home Centers Inc. Plaintiffs shall provide their Rule 26(a)(1) initial disclosures to Lowe's and respond to Lowe's First Set of Interrogatories and First Request for Production of Documents by 4/21/2015. Signed by Magistrate Judge Susan L Collins on 4/7/15. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JERRY J. FOWLER and
MICHELE FOWLER,
Plaintiffs,
v.
LOWE’S COMPANIES, INC., et al.,
Defendants.

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CAUSE NO. 1:13-CV-126

OPINION AND ORDER
Before the Court is a Motion to Compel filed on March 19, 2015, by Defendants Lowe’s
Companies, Inc., and Lowe’s Home Centers, LLC (together, “Lowe’s”), seeking to compel Plaintiffs
Jerry Fowler and Michele Fowler to produce their Federal Rule of Civil Procedure 26(a)(1) initial
disclosures and to respond to Lowe’s outstanding discovery requests. (DE # 70.) Plaintiffs have not
filed a response to the motion, and the time to do so has now expired.
For the following reasons, Lowe’s motion to compel will be GRANTED.
A. Procedural Background
This Court conducted a scheduling conference on December 12, 2014, setting the following
deadlines: January 16, 2015, for the exchange of Rule 26(a)(1) initial disclosures; and October 30,
2015, for the completion of all discovery. (DE # 67.)
Plaintiffs, however, failed to exchange their initial disclosures by January 16, 2015. (Mot. to
Compel ¶ 2.) On February 18, 2015, Lowe’s counsel had a telephone conference with Plaintiffs’
counsel, addressing Plaintiffs’ failure to provide Rule 26(a)(1) disclosures and failure to respond to
Lowe’s First Set of Interrogatories and First Request for Production of Documents served on
September 24, 2014 and requested again on November 7, 2014. (Mot. to Compel ¶¶ 3-5, Exs. B-D.)

Plaintiffs’ counsel stated that he would provide the disclosures and respond to the outstanding
written discovery within the next several days. (Mot. to Compel ¶ 5.)
On March 5, 2015, not having received the promised disclosures and discovery responses,
Lowe’s counsel sent correspondence to Plaintiffs’ counsel requesting that the disclosures and
discovery responses be produced by March 17, 2015. (Mot. to Compel ¶ 6, Ex. E.) Lowe’s counsel
further informed that if the disclosures and discovery responses were not produced by that date,
Lowe’s would “have no other alternative but to file a motion to compel.” (Mot. to Compel. Ex. E.)
On March 19, 2015, still not having received the disclosures and discovery responses,
Lowe’s filed the instant motion to compel, together with a certification under Local Rule 37-1(a).
(DE # 70.) As stated earlier, Plaintiffs have not responded to the motion to compel, and the time to
do so has now passed.
B. Applicable Law
Under Federal Rule of Civil Procedure 37, a party is permitted to file a motion to compel
discovery where another party fails to respond to interrogatories or requests for production of
documents. See Redmond v. Leatherwood, No. 06-C-1242, 2009 WL 212974, at *1 (E.D. Wis. Jan.
29, 2009). Together with the motion to compel, a party must file “a separate certification that the
party has conferred in good faith or attempted to confer with the other affected parties in an effort to
resolve the matter raised in the motion without court action.” N.D. Ind. L.R. 37-1(a); see Fed. R.
Civ. P. 37(a)(1). “A motion to compel discovery pursuant to Rule 37(a) is addressed to the sound
discretion of the trial court.” Redmond, 2009 WL 212974, at *1 (citation omitted).
C. Discussion
The Court finds that Lowe’s counsel has adequately attempted to confer in good faith with
Plaintiffs’ counsel in an effort to resolve this matter without Court action. See Fed. R. Civ. P.
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37(a)(1); N.D. Ind. L.R. 37-1(a). Plaintiffs appear to have simply ignored Lowe’s outstanding
discovery requests, Lowe’s counsel’s attempt at consultations, and Lowe’s motion to compel.
Consequently, the Court will GRANT the motion to compel and order Plaintiffs to provide their
Rule 26(a)(1) initial disclosures to Lowe’s and respond to Lowe’s First Set of Interrogatories and
First Request for Production of Documents on or before April 21, 2015. See, e.g., Redmond, 2009
WL 212974, at *1, 3 (granting plaintiff’s motion to compel where defendants appeared to have
“entirely ignored the plaintiff’s discovery requests”).
D. Conclusion
For the foregoing reasons, Defendants’ Motion to Compel (Docket # 70) is GRANTED.
Plaintiffs shall provide their Rule 26(a)(1) initial disclosures to Lowe’s and respond to Lowe’s First
Set of Interrogatories and First Request for Production of Documents on or before April 21, 2015.
SO ORDERED.
Enter for April 7, 2015.
S/Susan Collins
Susan Collins
United States Magistrate Judge

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