Rowan v. Host Hotels & Resorts, Inc.

Filing 13

ORDERED that Defendant's, 12 Motion to Compel Discovery Responses is hereby GRANTED IN PART AS UNOPPOSED and DENIED IN PART. FURTHER ORDERED that Plaintiff Brenda A. Rowan shall provide complete responses to Defendant Host Hotels & Resorts, Inc.'s First Set of Requests for Production of Documents no later than seven (7) days from the signing of this Order. Signed by Magistrate Judge Karen Wells Roby on 10/31/2011. (clm, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRENDA A. ROWAN

CIVIL ACTION

VERSUS

NO: 11-0749

HOST HOTELS & RESORTS, INC.

SECTION: “F” (4)
ORDER

Before the Court is Defendant’s, Motion to Compel Discovery Responses (R. Doc. 12) filed
by Defendant Host Hotels & Resorts, Inc., seeking an order from this Court requiring Plaintiff Brenda
A. Rowan to respond to its propounded discovery requests. Defendant also seeks attorney’ fees and
costs. The motion was heard on the briefs on Wednesday, October 26, 2011. The motion is
unopposed.
I.

Factual Background
Plaintiff Brenda A. Rowan (“Plaintiff”) filed this personal injury lawsuit after she broke her

nose going through a revolving door at Defendant’s hotel. (R. Doc. 1-1, ¶ III.) Plaintiff alleges that
Defendant’s negligence was the sole and proximate cause of her injuries. (R. Doc. 1-1, ¶ IV.) Thus,
Plaintiff seeks damages for past, present, and future physical pain and suffering, mental anguish and
distress, and medical expenses. (R. Doc. 1-1, ¶ VII.)
As to the instant motion, Defendant seeks an order from this Court requiring Plaintiff to
respond to its propounded discovery requests. Defendant contends that it propounded interrogatories
and a request for production of documents to Plaintiff on July 28, 2011. On August 31, 2011, after
it did not receive a response from Plaintiff, Defendant contends it scheduled a Federal Rule of Civil
Procedure (“Rule”) 37 conference with Plaintiff. Defendant further contends that during the Rule 37

conference the parties agreed that Plaintiff would serve her discovery responses on or before
September 15, 2011. Defendant contends that Plaintiff has not responded to its request for production
of documents, and only provided preliminary responses to its interrogatories. Thus, Defendant seeks
an order requiring Plaintiff to respond to its discovery requests. The motion is unopposed.
II.

Standard of Review
Rule 26(b)(1) provides that “[p]arties may obtain discovery regarding any non-privileged

matter that is relevant to any party’s claim or defense.” Fed.R.Civ.P. 26(b)(1). The Rule specifies
that “[r]elevant information need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). The discovery
rules are accorded broad and liberal treatment to achieve their purpose of adequately informing
litigants in civil trials. Herbert v. Lando, 441 U.S. 153, 176 (1979). Nevertheless, discovery does
have “ultimate and necessary boundaries.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351
(1978) (quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)) Further, it is well established that
“control of discovery is committed to the sound discretion of the trial court . . .” Freeman v. United
States, 556 F.3d 326, 341 (5th Cir. 2009); Coleman v. Am. Red Cross, 23 F.3d 1091, 1096 (6th
Cir.1994).
Under Rule 26(b)(2)(c), discovery may be limited if: (1) the discovery sought is unreasonably
cumulative or duplicative, or is obtainable from another, more convenient, less burdensome, or less
expensive source; (2) the party seeking discovery has had ample opportunity to obtain the discovery
sought; or (3) the burden or expense of the proposed discovery outweighs its likely benefit.
Fed.R.Civ.P. 26(b)(2)(C). In assessing whether the burden of the discovery outweighs its benefit,
a court must consider: (1) the needs of the case; (2) the amount in controversy; (3) the parties’
resources; (4) the importance of the issues at stake in the litigation; and (5) the importance of the
proposed discovery in resolving the issues. Fed.R.Civ.P. 26(b)(2)(C)(iii).

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Rule 37 provides that “[a] party seeking discovery may move for an order compelling an
answer, designation, production, or inspection. This motion may be made if: . . . (iii) a party fails to
answer an interrogatory submitted under Rule 33, or (iv) a party fails to respond that inspection will
be permitted – or fails to permit inspection – as requested under Rule 34. Fed.R.Civ.P. 37(a)(3)(B).
Further, “an evasive or incomplete disclosure, answer or response must be treated as a failure to
disclose, answer or respond.” Fed. R.Civ.P. 37(a)(4).
III.

Analysis
A.

Federal Rule of Civil Procedure 37

Defendant contends that, pursuant to Rule 37 it scheduled a conference with Plaintiff to
discuss Plaintiffs failure to respond. Rule 37 requires that all discovery motions “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.” Fed. R.
Civ. P. 37(a)(1). Attached to Defendant’s motion is a August 31, 2011 letter from Defendant’s
counsel to Plaintiff’s counsel that states, “[t]his will confirm that we held a discovery conference
today regarding the discovery propounded by Marriott upon your client, Brenda Rowan, on July
28th.” (R. Doc. 12-2.) Defendant also attached a Rule 37.1 certificate in which it certifies that a
conference was held on August 31, 2011, and that additional attempts to reach Plaintiff’s counsel via
telephone have been unsuccessful. (R. Doc. 12-3.) Thus, Defendant has met the requirements of
Rule 37.
B.

Local Rule 7.5

Under Local Rule 7.5, any memorandum in opposition to a motion must be filed eight (8)
days before the noticed submission date. Here, Plaintiff did not file a memorandum in opposition,
nor did she request an extension of time within which to oppose the motion.
C.

Plaintiff’s Preliminary Responses to Defendant’s Interrogatories

The Court notes that the subject discovery requests were propounded on July 28, 2011. (R.
Doc. 12-2.) Therefore, Plaintiff’s responses were due no later than August 27, 2011. Fed.R.Civ.P.

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33(b)(2) and 34(b)(2).
Defendant concedes, however, that Plaintiff provided it preliminary responses to its
interrogatories. Because Defendant failed to provide the Court with a copy of Plaintiff’s preliminary
responses, the Court is unable to determine the sufficiency of Plaintiff’s responses.

Thus,

Defendant’s motion must be Denied in Part.
D.

Attorney’s Fees

Defendant seeks to recover attorney’s fees and costs in connection with this motion. Rule 37
provides that when a discovery motion is granted in part and denied in part, the court may award
reasonable expenses, including attorney’s fees, to the prevailing party. Fed.R.Civ.P. 37(a)(5)(C).
Pursuant to Rule 37(a)(5)(C), Defendant’s request for attorney’s fees and costs is denied, as Plaintiff
did provide Defendant with preliminary responses to its interrogatories.
IV.

Conclusion
Accordingly,
IT IS ORDERED that Defendant’s, Motion to Compel Discovery Responses (R. Doc. 12)

is hereby GRANTED IN PART AS UNOPPOSED and DENIED IN PART.
IT IS FURTHER ORDERED that Plaintiff Brenda A. Rowan shall provide complete
responses to Defendant Host Hotels & Resorts, Inc.’s First Set of Requests for Production of
Documents no later than seven (7) days from the signing of this Order.
New Orleans, Louisiana, this 31st day of October 2011.

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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