Patel v. Reddy et al

Filing 354

ORDER denying 348 350 352 without prejudice for failure to sufficiently confer in accordance with D. Kan. Rule 37.2. Signed by Magistrate Judge James P. O'Hara on 10/23/2013. Mailed to pro se party Kamal Patel, No. 56496-080, CI Big Spring, 2001 Rickbaugh Drive, Big Spring, TX 79720 by regular mail. (mb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KAMAL K. PATEL,
and K & A MOTEL, INC.,
Plaintiffs,
v.

Case No. 10-2403-JTM

DAVID SNAPP and
WAITE, SNAPP & DOLL,
Defendants.
ORDER
This matter comes before the court on the motions of plaintiff1 K&A Motel, Inc. to
compel non-parties Wilson and Grace Parmar (doc. 348), Shiva Hotel, Inc. (“Shiva”)
(doc. 350), and Rebein Bangerter Rebein P.A. (“RBR”) (doc. 352) to produce documents
in response to subpoenas plaintiff served upon them. For the reasons discussed below, all
three motions are denied.
Plaintiff served Shiva with a subpoena on September 26, 2013, requesting
documents related to Shiva’s financial affairs and the performance of a hotel. Plaintiff
asserts that Shiva has been responsive and in regular contact with counsel for plaintiff
with respect to the subpoena at issue. Plaintiff states that Shiva has produced all items
sought with one exception. However, plaintiff asserts that it “anticipates that Shiva may
well produce the documents still outstanding prior to full resolution of this motion.”

1

Reference in this order to “plaintiff” is only to plaintiff K&A Motel, Inc.

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However, given that the responses are still outstanding, plaintiff filed this motion to
compel Shiva to produce the missing documents.
Plaintiff served a subpoena upon RBR on September 20, 2013, asking for
production of documents related to their communications with defendants.

Plaintiff

asserts that RBR’s counsel indicated on October 22, 2013 that they have responsive
documents prepared for production but plan to request a protective order first. Plaintiff
does not plan to oppose the protective order. Once again, plaintiff explains that it expects
the responsive documents will be produced before this motion is resolved by the court.
However, plaintiff still filed its motion to compel because responsive documents have not
yet been produced.
Plaintiff served subpoenas upon Wilson and Grace Parmar on October 8, 2013,
asking for production of phone records and phone bills. Wilson and Grace Parmar
responded that they don’t have the requested documents in their possession. Plaintiff
requests that the court compel Wilson and Grace Parmar to conduct a full inquiry into
whether the requested documents are in their “custody or control,” and provide
responsive phone records and bills.
Plaintiff attached a “Certificate of Compliance with Fed. R. Civ. P. 37 and Local
Rule 37.2” to each of its motions to compel, which simply states “reasonable and good
faith efforts have been made in an attempt to resolve the issues brought to the court’s
attention via this memorandum and the accompanying motion.” D. Kan. Rule 37.2
provides, in pertinent part:

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The court will not entertain any motion to resolve a discovery dispute pursuant to
Fed. R. Civ. P. 26 through 37, … unless counsel for the moving party has
conferred or has made reasonable effort to confer with opposing counsel
concerning the matter in dispute prior to the filing of the motion. …
A “reasonable effort to confer” means more than mailing a letter to the opposing
party. It requires that the parties in good faith converse, confer, compare views,
consult and deliberate, or in good faith attempt to do so.
This requirement encourages parties to satisfactorily resolve their discovery disputes
prior to resorting to judicial intervention.2 “Failure to confer or attempt to confer may
result in unnecessary motions. When the court must resolve a dispute that the parties
themselves could have resolved, it must needlessly expend resources that it could better
utilize elsewhere.”3
By plaintiff’s description, most of the “disputes” do not appear to be disputes at
all. Rather, plaintiff assures the court that it trusts the motions will resolve themselves
prior to the court’s resolution of them. Plaintiff’s “Certificate of Compliance” included
in each motion is insufficient. D. Kan. Rule 37.2 requires plaintiff to file a certificate that
describes “with particularity the steps taken by all attorneys to resolve the issues in
dispute.” Accordingly, the court denies the instant motions on this basis. If these
“disputes” are not resolved after the parties make a reasonable effort to confer, plaintiff

2

Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 456, 459 (D.
Kan. 1999); VNA Plus, Inc. v. Apria Healthcare Group, Inc., No. 98-2138, 1999 WL
386949, at *1 (D. Kan. June 8, 1999) (citing Nave v. Artex Mfg., Inc., No. 96-2002, 1997
WL 195913, at *1 (D. Kan. Apr. 16, 1997)).
3

Pulsecard, Inc. v. Discover Card Servcs., Inc., 168 F.R.D. 295, 302 (D. Kan.

1996).
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may file amended motions which include a certificate that describes “with particularity
the steps taken by all attorneys to resolve the issues in dispute.”4
In consideration of the foregoing,
1.

Plaintiff’s motion to compel (doc. 348) Wilson and Grace Parmar to

respond to requests for production is denied without prejudice to be reasserted if attempts
to confer are unsuccessful.
2.

Plaintiff’s motion to compel (doc. 350) Shiva to respond to requests for

production is denied without prejudice if attempts to confer are unsuccessful.
3.

Plaintiff’s motion to compel (doc. 352) RBR to respond to requests for

production is denied without prejudice if attempts to confer are unsuccessful.
IT IS SO ORDERED.
Dated October 23, 2013 at Kansas City, Kansas.

s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge

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See D. Kan. Rule 37.2.

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