Wasserman et al v. Bowers et al
Filing
86
MEMORANDUM OPINION AND ORDER: It is ordered that Plas' 81 Motion to Compel Discovery in Aide of Execution of Judgment is DENIED WITHOUT PREJUDICE to its refiling in the future once counsel is prepared to meet the requirements of Fed Rule of Civil Procedure 37 and Local Rule 37.1. Signed by Judge Joseph M. Hood on 7/14/2011. (SCD)cc: COR,Dfts(via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LEXINGTON
CASEY WASSERMAN LIVING
TRUST UNDER DECLARATION OF
TRUST DATED JUNE 29, 1999
and
WASSERMAN MEDIA GROUP LLC,
Plaintiffs,
v.
TIM BOWERS and TYLER BOWERS,
Defendants.
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) Civil Action No. 5:09-CV-180-JMH
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) MEMORANDUM OPINION AND ORDER
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Plaintiffs made a Motion to Compel Discovery in Aid of
Execution of Judgment [Record No. 81] after they argue Tim and
Tyler Bowers failed to respond to multiple discovery requests.
Plaintiffs have attached to this motion a Memorandum in Support
[Record
No.
81-1]
and
a
Proposed
Order
[Record
No.
81-2].
Plaintiffs make this motion pursuant to Federal Rules of Civil
Procedure Rule 37 and Rule 69 asking for sanctions, in the amount
of costs and attorney fees incurred in bringing this motion, as
well as an order to compel Tim and Tyler Bowers to appear for a
deposition and an order to compel Tim Bowers to respond to written
discovery requests [Record No. 81-2].
Plaintiffs, however, have failed to comply with the procedural
requirements necessary for this Court to issue sanctions or compel
discovery in this case.
Rule 69(a)(2) allows a judgment creditor
the opportunity to “obtain discovery from any person . . . as
provided in these rules or by the procedure of the state where the
court is located.”
Fed. R. Civ. P. 69.
Rule 37 provides that this
Court may issue sanctions for parties that fail to properly appear
for a deposition provided that “[the] motion for sanctions for
failing to answer or respond [includes] a certification that movant
has in good faith
. . .
attempted to confer with the party
failing to act in an effort to obtain the answer or response
without court action.”
Fed. R. Civ. P. 37(d)(1)(B).
Rule 37 also
requires a motion to compel discovery include a “certification that
the movant has in good faith conferred or at least attempted to
confer” in an attempt to resolve the dispute.
37(a)(1).
Fed. R. Civ. P.
Similarly, the Local Rules for the Eastern District of
Kentucky require that “[t]he moving party must attach to every
discovery motion a certification that counsel have conferred and
are unable to resolve their differences.”
LR 37.1.
Local Rules
state that the Court will not consider motions “unless counsel have
conferred – or attempted to confer — with other affected parties in
an effort to resolve their dispute” and a certificate is filed
detailing “counsel’s attempts to resolve the dispute.”
Id.
While Plaintiffs’ Memorandum in Support [Record No. 81-1]
argues that Tim and Tyler Bowers have failed to appear twice for
scheduled depositions and that Tim Bowers has failed to respond to
2
written
discovery
certification
of
requests,
attempts
Plaintiffs
to
resolve
have
this
not
submitted
dispute.
a
Rather,
Plaintiffs’ Memorandum in Support sets forth a single phone call
from Tim Bowers’ wife and Tyler Bowers’ mother to Wasserman’s
attorney,
during
which
she
stated
that
the
Defendants
were
unavailable for the first scheduled deposition on June 10, 2011.
[Record No. 81-1, pp. 1-2].
Plaintiffs state that they agreed to
postpone Tyler’s deposition pending satisfaction of the judgment
entered against him but did not agree to postpone Tim’s deposition
until Tim provided an alternate date.
[Record No. 81-1, p. 2].
The Court need not, indeed, will not reach the issue of whether
this constitutes a “good faith [attempt] to confer with” Defendants
to resolve the dispute or details “a good faith effort to resolve
extrajudicially any dispute relating to discovery.”
See Fed. R.
Civ. P. 37; LR 37.1. The reason is simple – Plaintiffs’ Memorandum
in Support of Motion to Compel does not suffice as a certificate.
The “prerequisite [of a good faith certificate] is not an empty
formality” and this Court shall deny Plaintiffs’ motion without
prejudice.
See Scepter, Inc. v. Alcan Rolled Prods.-Ravenswood,
LLC, No. 3:09-0192, 2009 U.S. Dist. LEXIS 116664, at *4-5 (M.D.
Tenn. Dec. 15, 2009) (quoting Ross v. Citifinancial, Inc., 203
F.R.D. 239, 240 (S.D. Miss. 2001)); Brady v. Ltd. Parts, Inc., No.
2:08-0058, 2009 U.S. Dist. LEXIS 63229, at *3-4 (M.D. Tenn. July
22, 2009) (quoting Ross, 203 F.R.D. at 240).
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Accordingly, IT IS ORDERED that Plaintiffs’ Motion to Compel
Discovery in Aide of Execution of Judgment [Record No. 81] is
DENIED WITHOUT PREJUDICE to its refiling in the future once counsel
is prepared to meet the requirements of Federal Rules of Civil
Procedure Rule 37 and Local Rule 37.1.
This the 14th day of July, 2011.
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