Ira Green, Inc. v. U. S. Cavalry Store, Inc.

Filing 25

OPINION & ORDER granting in part and denying in part 19 Motion to Compel; granting in part and denying in part 19 Motion for Sanctions. Signed by Chief Judge Thomas B. Russell on 04/14/2011. cc:counsel (CSD)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CASE NO. 3:10-CV-00444-R
IRA GREEN, INC.

PLAINTIFF

v.
U.S. CAVALRY STORE, INC.,

DEFENDANT
OPINION AND ORDER

This matter comes before the Court upon Plaintiff’s Motion to Compel Discovery
Responses and for Sanctions against Defendant. (DN 19). Defendant has responded (DN 21)
and Plaintiff has replied (DN 24). For the reasons that follow, Plaintiff’s Motion is GRANTED
IN PART AND DENIED IN PART.
Plaintiff IRA Green, Inc. is a Rhode Island corporation that “manufactures, distributes,
markets, and sells military gear, decorations, medals, uniform-related accessories and other
products.” DN 1 at 2. Defendant U.S. Cavalry Store, Inc. is a Delaware corporation doing
business in Kentucky. Id. Plaintiff brought this action against Defendant on June 24, 2010, for
false advertising, false designation of origin, and unfair competition. Id. at 1-2.
According to the record before the Court, Plaintiff’s counsel propounded upon Defense
counsel its initial request for production of documents and its initial set of interrogatories on
December 28, 2010. Although Plaintiff’s counsel contacted Defense counsel on several
occasions as the deadline neared, no timely responses were offered. See Fed. R. Civ. P. 33, 34 (a
party generally has 30 days to respond to requests of production and interrogatories). This
motion followed on February 9, 2011, seeking to compel production of these items; still,
Defendant did not respond to the requests until March 2, 2011. See DN 21 at 1. Plaintiff also
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complains that Defendant has impeded previously scheduled depositions of the Rule 30(b)(6)
designee, which has in turn caused Plaintiff’s counsel to incur unnecessary expenses.
Specifically, Plaintiff’s counsel writes in his reply to this motion that on February 23, 2011, two
days before the Rule 30(b)(6) designee was supposed to be deposed, Defense counsel informed
Plaintiff’s counsel that the witness was unavailable. DN 24-1 at 1. Plaintiff’s counsel affirms
that since he was required to travel from Rhode Island to Kentucky, he had already incurred
expenses for the deposition. DN 24-1 at 1. Furthermore, when the deposition did take place on
March 3, 2011, the designee stated that he in fact had been available on February 23, but was
unaware that he was scheduled to be questioned. DN 24-2 at 5-6. As these allegations have
arisen in Plaintiff’s reply brief, Defendant has not had an opportunity to respond.
As redress for the delay and unnecessary expenditures it accumulated, Plaintiff asks the
Court enter a default judgment against Defendant under Federal Rule of Civil Procedure 37. In
the alternative, Plaintiff asks that Defendant be compelled to respond to its discovery requests
and pay for Plaintiff’s fees and costs. Defense counsel retorts that the delay was due to her own
family troubles, that the completed production requests and interrogatories have been returned,
and that Plaintiff was most likely not prejudiced by the tardy filings.
Rule 37 allows a court to award sanctions when a Rule 30(b)(6) designee fails to appear
for a deposition or when a party, properly served with interrogatories and requests for
production, “fails to serve its answers, objections, or written response.” Fed. R. Civ. P.
37(d)(1)(A)(i)-(ii). It may impose the type of sanctions described in Rule 37(b)(2)(A)(i)-(iv),
which includes rendering a default judgment, or it may also “require the party failing to act, the
attorney advising that party, or both to pay reasonable expenses, including attorney’s fees caused

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by the failure.” Id. § 37(d)(3). Conversely, the target of the sanctions motion may avoid
responsibility by showing that “the failure was substantially justified or other circumstances
make an award of expenses unjust.” Id.
The Court first finds that Defendant’s delay was not substantially justified and that
without the remedy provided by the Court in this order, the delay would not be harmless. While
the Court understands that Defense counsel’s duties at home may have intruded on her other
responsibilities during the relevant time period, the record indicates that she is one of three
attorneys representing the Defendant. At least one of the other counselors should have been able
to manage the discovery process by either responding to Plaintiff’s requests, or by at least
petitioning for an extension with the Court. Moreover, the correspondence attached to this
motion indicates that Plaintiff’s counsel attempted in good faith to resolve the dispute without
first involving the Court. Concerning the Rule 30(b)(6) designee’s deposition, the record
demonstrates that whatever costs Plaintiff’s counsel incurred through its cancellation are directly
attributable to Defendant. The designee’s testimony seems to indicate that he was not even
aware he was going to testify until a day before the actual deposition occurred. DN 24-2 at 4-6.
It is unclear to the Court how a witness can be unavailable when he does not even know of the
previously established appointment. Plaintiff’s sunk travel expenditures could have been
avoided had Defense counsel provided timely notice to its client concerning the scheduled
deposition.
Regarding the Motion to Compel, Defendant has forwarded the petitioned-for responses
and documents to Plaintiff; as such, this request is moot. To the extent that Plaintiff is
dissatisfied with Defendant’s responses or its objections to the discovery requests, this motion is

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not the appropriate vehicle to explore these concerns. Plaintiff raised these issues in its reply
brief and consequently Defendant has not had an opportunity to address its position and the
objections it raised. If Plaintiff finds itself further stymied by Defendant’s responses and it
believes they are violative of the federal discovery rules, the Court invites it to file another
motion to compel where these issues may be fully briefed by both litigants.
CONCLUSION
In light of Defendant’s unjustified delay in returning Plaintiff’s interrogatories and
requests for production of documents, the Court will favorably entertain a motion from the
Plaintiff for reasonable costs and attorney’s fees to prepare the present motion and reply.
Plaintiff’s counsel may also include the travel expenses he incurred as a result of the canceled
deposition on February 23, 2011. These sanctions will remedy any harm caused by the delay in
production of these materials, making it unnecessary to take more drastic action.
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiffs Motion (DN 19) is
GRANTED IN PART AND DENIED IN PART. Plaintiff may make a motion for costs and
attorney’s fees that precisely details its reasonable expenses. Plaintiff’s motion to compel is
DENIED as moot. Plaintiff may file another motion addressing any concerns it may have
regarding Defendant’s responses to the above-described discovery items.

April 14, 2011

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