American Power Chassis, Inc. v. Jones et al

Filing 136

ORDER denying 133 Motion for Sanctions. Signed by Magistrate Judge K. Gary Sebelius on 1/19/2018.(wh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
AMERICAN POWER CHASSIS, INC.,
Plaintiff,
v.
GARY JONES and
JONES & SONS CHASSIS, INC.,
Defendants.

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Case No. 13-4134-KHV

ORDER
This matter comes before the court upon Plaintiff’s Renewed Motion for Sanctions (ECF
No. 133). For the following reasons, this motion is denied.
I.
This case has a tangled past. The court recounts only those facts that are necessary for
the resolution of this motion. On July 11, 2017, Judge Vratil adopted in part this court’s Report
and Recommendation of January 26, 2017. In her order, Judge Vratil directed defendant Gary
Jones to respond without objection to plaintiff’s interrogatories and requests for production of
documents by July 26, 2017. She subsequently extended Mr. Jones’ time to respond to discovery
to September 25, 2017. On September 22, 2017, plaintiff received Mr. Jones’ answers to the
discovery. Plaintiff contends that Mr. Jones did not comply with Judge Vratil’s order. Plaintiff
argues that Mr. Jones’ responses were exactly what he had previously provided but without the
following phrase that had previously been included in his responses: “Defendant Gary Jones pro
se objects to this discovery and is unable to answer this question.” Plaintiff’s counsel notes that
he called Mr. Jones in an attempt to discuss his responses to discovery. He states that Mr. Jones’
telephone was not answered and he left a message, which was never returned. Plaintiff’s counsel

then directed a “Golden Rule” letter to Mr. Jones, which was received on October 10, 2017. He
then notes that he received a letter from Mr. Jones on October 11, 2017, which he believes
indicates that Mr. Jones is not agreeable to providing full and complete discovery. He requests
that the court impose sanctions, including default judgment, upon Mr. Jones for his failure to
comply with the court’s orders.
In his response, Mr. Jones states that he did respond to plaintiff’s counsel’s letter. He
notes that he believes that he answered all of the interrogatories and requests for production of
documents. He asked plaintiff’s counsel in his responsive letter to “indicate what specific
interrogatories and what specific production of documents that I objected to.” He closed by
stating: “Please let me hear from you in writing.” In his response to plaintiff’s motion, Mr.
Jones contends that the court should deny plaintiff’s motion until discovery between the parties
is concluded.
Plaintiff failed to file a reply to Mr. Jones’ response. There is no indication that any
additional discussions were had by the parties concerning this discovery.
II.
When a party seeks to compel discovery responses from another party, “[t]he motion
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.”1 Moreover, a court in this district
will not entertain any motion to resolve a discovery dispute...unless the attorney
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. Every certification...related to the efforts of the parties to resolve
discovery...disputes must describe with particularity the steps taken by all
attorneys to resolve the issues in dispute.
1

Fed. R. Civ. P. 37(a)(1).

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A “reasonable effort to confer” means more than mailing or faxing 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.2
III.
The court finds that a single letter, sent by counsel for plaintiff, does not constitute a
“reasonable effort to confer” under D. Kan. Rule 37.2. Plaintiff’s counsel makes no showing
that he undertook any additional efforts to resolve the dispute beyond writing the letter. Merely
repeating a position and requesting or demanding compliance with a discovery request does not
satisfy a party's requirement to “converse, confer, compare views, consult, and deliberate, or in
good faith attempt to do so.” Accordingly, the court denies the motion.
IT IS THEREFORE ORDERED that Plaintiff’s Renewed Motion for Sanctions (ECF
No. 133) is denied.
IT IS SO ORDERED.
Dated this 19th day of January, 2018, at Topeka, Kansas.

s/ K. Gary Sebelius
K. Gary Sebelius
U.S. Magistrate Judge

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D. Kan. R. 37.2.

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