Livermore et al v. Arnold et al

Filing 44

RULING & ORDER 42 Motion to Compel is GRANTED and pltfs Frank Livermore and Linda Cervizzi shall produce their complete Rule 26 initial disclosures within 10 days of this Order. FURTHER ORDERED that defts are entitled to an award of reasonable attorney's fees and costs. Signed by Magistrate Judge Christine Noland on 6/1/2011. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
FRANK LIVERMORE AND L INDA
CERVIZZI

CIVIL ACTION

VERSUS
JOEL ARNOLD, SHERIFF WILLIE
GRAVES, SCOTT PERRILLOUX,
AND CATHERINE PEEVER

NO. 10-507-B-M2

RULING & ORDER
This matter is before the Court on the Motion to Compel (R. Doc. 42) filed by
defendants, Willie Graves, Sheriff of Livingston Parish, State of Louisiana, and Deputy Joel
Arnold (collectively “defendants”).

Plaintiffs, Frank Livermore and Linda Cervizzi

(collectively “plaintiffs”), have not filed an opposition to this motion.
FACTS & PROCEDURAL BACKGROUND
A scheduling order was entered in this matter on March 28, 2011, setting a deadline
of April 15, 2011 for the exchanging of Rule 26 initial disclosures by the parties. According
to the present motion, when plaintiffs’ initial disclosures were not received by the
defendants by the court-imposed deadline, defense counsel sent an email to plaintiffs’
counsel requesting that he notify her of the status of his clients’ initial disclosures. The
email was received by plaintiffs’ counsel, as he responded to other issues raised in defense
counsel’s email; however, plaintiffs’ counsel did not respond regarding the status of
receiving plaintiffs’ initial disclosures.
On April 28, 2011, defense counsel sent another email to plaintiffs’ counsel
requesting a Rule 37 conference be scheduled for May 2, 2011 at 10:00 a.m. to discuss
the outstanding initial disclosures. Defense counsel contacted plaintiffs’ counsel’s office
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at the noticed date and time, but no one answered. Despite having left a voice mail for
plaintiffs’ counsel, defense counsel had not received any response as of the time she filed
the present motion on May 3, 2011. Through this motion, defendants seek to have the
Court compel plaintiffs to produce their initial disclosures within ten (10) days and to have
plaintiffs pay the reasonable expenses, including attorney’s fees, that defendants incurred
in bringing this motion.
LAW & ANALYSIS
Local Rule 7.5M of the Middle District of Louisiana requires that memoranda in
opposition to a motion be filed within twenty-one (21) days after service of the motion. The
rule specifically provides:
LR7.5M
Response and Memorandum
Each respondent opposing a motion shall file a response,
including opposing affidavits, memorandum, and such
supporting documents as are then available, within 21 days
after service of the motion. Memoranda shall contain a concise
statement of the reasons in opposition to the motion, and a
citation of authorities upon which the respondent relies. For
good cause appearing therefor, a respondent may be required
to file a response and supporting documents, including
memoranda, within such shorter or longer period of time as the
court may order, upon written ex parte motion served on all
parties.
The present motion was filed on May 3, 2011, and the Court’s electronic filing system
indicates that notice of the filing of the motion was sent to plaintiffs’ counsel on that same
date at 12:06 p.m. CDT. Thus, more than twenty-one (21) days have elapsed since the
service of the motion, and plaintiffs have failed to file any opposition. The motion is
therefore deemed to be unopposed.
In addition to being unopposed, the motion has merit and should be granted. Except
in certain proceedings that are exempt from initial disclosure, which are not applicable
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herein, a party must, without awaiting a discovery request, provide to other parties certain
required disclosures set forth in Fed. R. Civ. P. 26(a).1 The parties’ obligation to produce
initial disclosures within the deadline set by the Court is mandatory unless they stipulate
to forego the initial disclosure requirement. See, Fed. R. Civ. P. 26(a)(a party must . . .
provide to the other parties . . .) (emphasis added); 8A Fed. Prac. & Proc. Civ. §2053 (3d
ed. 2010). Furthermore, pursuant to Fed. R. Civ. P. 37(a)(3)(A), “[i]f a party fails to make
a disclosure required by Rule 26(a), any other party may move to compel disclosure and
for appropriate sanctions.” Fed. R. Civ. P. 37(a)(3)(A). Because the plaintiffs in the
present case did not provide their initial disclosures in accordance with the deadline
imposed by the Court, there is no evidence before the Court that the initial disclosure
requirement was waived by the parties, and the plaintiffs have been unresponsive to
defendants’ inquiries concerning the status of receiving those disclosures, defendants’
motion will be granted. Plaintiffs will be ordered to produce their complete initial disclosures
within ten (10) days of this Order and to pay the reasonable attorney’s fees and expenses
that defendants incurred in bringing the present motion pursuant to Fed. R. Civ. P.
37(a)(3)(A) and (a)(5)(A).2

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Those required disclosures are the following: (1) the name, address and telephone number of
each individual likely to have discoverable information – along with the subjects of that information – that
the disclosing party may use to support its claims or defenses, unless the use would be solely for
impeachment; (2) a copy – or a description by category and location – of all documents, electronically
stored information, and tangible things that the disclosing party has in its possession, custody, or control
and may use to support its claims or defenses, unless the use would be solely for impeachment; (3) a
computation of each category of damages claimed by the disclosing party; and (4) for inspection and
copying as under Rule 34, any insurance agreement under which an insurance business may be liable to
satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to
satisfy the judgment. Fed. R. Civ. P. 26(a).
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Fed. R. Civ. P. 37(a)(5)(A) provides that, if a motion to compel is granted – or if the disclosure or
requested discovery is provided after the motion was filed – the court must, after giving an opportunity to
be heard, require the party whose conduct necessitated the motion, the party or attorney advising that
conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including
attorney’s fees, unless (1) the movant filed the motion before attempting in good faith to obtain the

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Accordingly;
IT IS ORDERED that the Motion to Compel (R. Doc. 42) filed by defendants, Willie
Graves, Sheriff of Livingston Parish, State of Louisiana, and Deputy Joel Arnold, is hereby
GRANTED, and that plaintiffs, Frank Livermore and Linda Cervizzi, shall produce their
complete Rule 26 initial disclosures within ten (10) days of this Order.
IT IS FURTHER ORDERED that defendants are entitled to an award of the
reasonable attorney’s fees and costs that they incurred in bringing this motion to compel
and that, in connection with that award, the parties are to do the following:
(1)

If the parties agree to the amount of attorney’s fees and costs, plaintiffs
and/or their counsel shall pay that amount;

(2)

If the parties do not agree to the amount, defendants shall, within fifteen (15)
days of the date this Order is signed, submit to the Court a report setting forth
the amount of costs and attorney’s fees (including evidentiary support)
incurred in obtaining this Order; and

(3)

Plaintiffs shall have ten (10) days after the filing of defendants’ report to file
an opposition.

Signed in chambers in Baton Rouge, Louisiana, June 1, 2011.

MAGISTRATE JUDGE CHRISTINE NOLAND

disclosure or discovery without court action; (2) the opposing party’s nondisclosure, response or objection
was substantially justified; or (3) other circumstances make an award of expenses unjust. Fed. R. Civ. P.
37(a)(5)(A). Since defendants were unable to obtain plaintiffs’ initial disclosures despite good faith efforts
prior to court intervention, and plaintiffs have not established that their failure to timely produce their initial
disclosures was substantially justified or that an award of expenses to the defendants is unjust, the Court
finds that an award of reasonable expenses and fees is warranted under Rule 37(a)(5)(A).

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