Carrols LLC v. All-America Foods Inc et al

Filing 73

OPINION AND ORDER DENYING 72 MOTION for Extension to Respond to Requests for Production of Documents by Defendants All-America Foods Inc, Elliott Neubauer, Neubauer Enterprises LLC. Signed by Magistrate Judge Roger B Cosbey on 3/5/14. (cer)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
CARROLS, LLC,
Plaintiff,
vs.
ALL-AMERICA FOODS, INC., et al.,
Defendants.

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Case No.: 1:13-CV-355

OPINION AND ORDER
This matter is before the Court on Defendants’ Motion for Extension to Respond to
Requests for Production of Documents, filed on March 4, 2014. (Docket # 72.) In the motion,
Defendants seek a thirty-day extension within which to produce their responses to Plaintiff’s
Request for Production of Documents, which were mailed on January 31, 2014. (Defs.’ Mot. for
Extension to Respond to Reqs. for Produc. of Docs. (“Def.’s Mot.”) ¶¶ 1, 3.)
Under Federal Rule of Civil Procedure 37(a)(1), a motion to compel “must include a
certification that the movant has in good faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to obtain it without court action.” Local
Rule 37-1(a) adds the requirement that the “separate certification” state “(1) the date, time, and
place of any conference or attempted conference; and (2) the names of the parties participating in
the conference.”
“A good faith effort to resolve a discovery dispute requires that counsel converse, confer,
compare views, consult and deliberate.” Romary Assocs., Inc. v. Kibbi, LLC, No. 1:10-cv-376,
2011 WL 4005346, at *5 (N.D. Ind. Sept. 8, 2011) (citation omitted); accord 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.’” Hartford v. Schindler Elevator Corp., No. 1:09-cv-132,
2010 WL 5463293, at *1 (N.D. Ind. De. 29, 2010) (quoting Imbody v. C & R. Plating Corp., No.
1:08-cv-218, 2010 WL 3184392, at *1 (N.D. Ind. Aug. 10, 2010)).
Here, Defendants claim that on February 28, 2014, one of its attorneys sent an email to
Plaintiff’s counsel requesting a thirty-day enlargement of time to respond to the discovery
requests. (Def.’s Mot. ¶ 5.) Over the course of the next few days, counsel exchanged emails
concerning the requested enlargement of time, but were unable to reach agreement on the matter.
(Def.’s Mot. ¶ 5, Ex. B.)
Brief e-mail correspondence, however, falls short of a good faith attempt at a conference.
See Forest River Hous., Inc. v. Patriot Homes, Inc., No. 3:06-cv-841 AS, 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.”); see also 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). In particular, an
email exchange “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., No. 3:05-MD-

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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 . . . .”
Garcia v. Aartman Transp. Corp., No. 4:08-cv-77, 2010 WL 2427571, at *4 (N.D. Ind. June 4,
2010) (alteration in original; 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)).
And even if the parties’ e-mail exchange constituted a good faith attempt to resolve the
discovery dispute, there is no “separate certification” reciting the date, time, and place of the
conference and the parties that participated, as required by Local Rule 37-1(a). The failure to
file the required certification is itself grounds for denial of the Defendants’ motion for
extension. See N.D. Ind. L.R. 37-1(b) (“The court may deny any motion . . . if the required
certification is not filed.”).
For these reasons, Defendants’ Motion for Extension to Respond to Requests for
Production of Documents (Docket # 72) is DENIED.
SO ORDERED.
Enter for March 5, 2014.
S/Roger B. Cosbey
Roger B. Cosbey
United States Magistrate Judge

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