Moncrieffe v. State Farm Insurance

Filing 16

RULING: Accordingly, the dft's denying 13 Motion to Compel Inspection and Depositions is granted in part. Pltf shall provide access to the property at issue for an inspection on a date selected by the defendant, but no later than 8/31/2011. The scheduling order will be amended to extend the deadline for the defendant to complete fact discovery, including the inspection of the property and taking the plaintiffs deposition, to 8/31/2011. The deadline for the defendant to complete its expe rt discovery will also be extended to 8/31/2011, and the deadline for the defendant produce any required expert report will be extended to 9/30/2011. In all other respects, the defendants motion is denied. Signed by Magistrate Judge Stephen C. Riedlinger on 7/13/2011. (CMM) Modified on 7/14/2011 to edit text. (CMM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ALMENIA MONCRIEFFE
CIVIL ACTION
VERSUS
NUMBER 10-687-BAJ-SCR
STATE FARM INSURANCE
RULING DEFENDANT’S MOTION TO COMPEL INSPECTION AND DEPOSITIONS
Before

the

court

is

the

Defendant’s

Motion

to

Compel

Inspection and Depositions filed by State Farm Fire and Casualty
Company.

Record document numbers 13.

No opposition has been

filed.
Defendant filed this motion to compel: (1) the deposition of
the plaintiff; (2) an inspection of the property at issue in this
matter; and, (3) the deposition of the plaintiff’s purported
expert, Nader Odeh. Defendant asserted that its attorney contacted
the plaintiff’s attorney on multiple occasions by email to obtain
dates to conduct the inspection and take the depositions but was
unsuccessful.1

In addition to obtaining the requested discovery,

the defendant sought an award of costs incurred in bringing this
motion.
The emails from the defendant’s attorney can be treated as a
Rule 34(a)(2), Fed.R.Civ.P., request for entry on land and for
inspection.

1

Although there is no indication that the plaintiff

Record document number 13-1 and 13-2, exhibits A and B,
emails from Shaveka Joshua.

consented to service of discovery requests by email, there is no
indication that the plaintiff objected to service of the request by
that method. As to the depositions of the plaintiff and Odeh, when
the

plaintiff’s

attorney

failed

to

respond

to

requests

for

depositions dates, all that Rule 30, Fed.R.Civ.P., required the
defendant to do was issue a notice for the depositions and serve
Odeh with a subpoena as provided by Rule 45, Fed.R.Civ.P. There is
no indication that the defendant noticed the depositions of either
the plaintiff or Odeh.
Plaintiff’s failure to provide any objection or response to
the request for inspection, and to file any opposition to this
motion, establishes that the defendant is entitled to an order
under Rule 37(a), Fed.R.Civ.P.

Plaintiff shall provide access to

the property at issue for an inspection on a date selected by the
defendant, but no later than August 31, 2011.

No objections will

be allowed.2
As to the depositions, there is no basis for an order under
Rule 37.

Neither the plaintiff nor Odeh failed to appear for a

properly noticed deposition.

All the defendant needs to do is

serve a notice for the depositions, as required by Rule 30, and
serve a subpoena on Odeh, as provided by Rule 45.

2

Defendant’s

Generally discovery objections are waived if a party fails
to timely object to interrogatories, production requests or other
discovery efforts.
See, In re U.S., 864 F.2d 1153, 1156 (5th
Cir.), reh’g denied, 869 F.2d 1487 (5th Cir. 1989); Godsey v. U.S.,
133 F.R.D. 111, 113 (S.D. Miss. 1990).
2

repeated efforts to obtain the depositions voluntarily, although
not necessary under Rule 30, are sufficient to find good cause to
extend the scheduling order deadline for the defendant to complete
its fact and expert discovery.

The scheduling order will be

amended to allow additional time, until August 31, 2011, for the
defendant to complete the inspection of the property and depose the
plaintiff and Odeh.
Pursuant to Rule 37(a)(5)(C), the parties shall bear their
respective costs incurred in connection with this motion.
Accordingly, the Defendant’s Motion to Compel Inspection and
Depositions filed by State Farm Fire and Casualty Company is
granted in part. Plaintiff shall provide access to the property at
issue for an inspection on a date selected by the defendant, but no
later than August 31, 2011.
to

extend

the

deadline

The scheduling order will be amended

for

the

defendant

to

complete

fact

discovery, including the inspection of the property and taking the
plaintiff’s deposition, to August 31,2011.

The deadline for the

defendant to complete its expert discovery will also be extended to
August 31, 2011, and the deadline for the defendant produce any
required expert report will be extended to September 30, 2011.
all other respects, the defendant’s motion is denied.
Baton Rouge, Louisiana, July 13, 2011.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE
3

In