Joffrion v. Excel Maintainence Services, Inc. et al

Filing 25

RULING AND ORDER denying 16 Motion to Compel Defendants to Complete Discovery as premature, procedurally deficient, and/or moot.. Signed by Magistrate Judge Christine Noland on 11/30/2011. (CMM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TROY D. JOFFRION

CIVIL ACTION

VERSUS
EXCEL MAINTENANCE
SERVICES, INC. AND RICHARD
MILLER, JR.

NO. 11-528-BAJ-CN

RULING & ORDER
This matter is before the Court on the Motion to Compel Defendants to Complete
Discovery (R. Doc. 16) filed by plaintiff, Troy D. Joffrion (“Joffrion” or “plaintiff”).
Defendants, Excel Maintenance Services, Inc. (“Excel”) and Richard Miller, Jr.
(“Miller”)(collectively “defendants”), have filed an opposition (R. Doc. 18) to Joffrion’s
motion. Such motion should be denied for several reasons. First, the interrogatories,
requests for production of documents, and requests for admission propounded upon Miller,
which are at issue in the motion, were premature since they were served upon him before
the parties to this matter had a discovery planning conference as required by Fed. R. Civ.
P. 26(d). See, Rule 26(d)(“[A] party may not seek discovery from any source before the
parties have conferred as required by Rule 26(f) . . .”);1 Briggs v. T & D Plumbing and

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Pursuant to Fed. R. Civ. P. 26(f), except in a proceeding exempted from initial disclosure under
Rule 26(a)(1)(B) or when the court orders otherwise (neither of which circumstance exists herein), the
parties must confer as soon as practicable to plan for discovery, and in any event, at least 21 days before
a scheduling conference is to be held or a scheduling order is due under Rule 16(b). Fed. R. Civ. P.
26(f)(1). In conferring, the parties are to consider the nature and basis of their claims and defenses and
the possibilities for promptly settling or resolving the case, make or arrange for the disclosures required by
Rule 26(a)(1), discuss any issues about preserving discoverable information, and develop a proposed
discovery plan. Fed. R. Civ. P. 26(f)(2). The attorneys of record and all unrepresented parties that have
appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to
agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference
a written report outlining the plan. Id.

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Heating Co., Inc., 2011 WL 2970845 (D.Md. 2011)(“Unless otherwise ordered by the Court,
discovery may not begin until the parties have held a discovery conference and a
scheduling order has been issued); Madison v. Harford Cnty., 268 F.R.D. 563, 564-65
(D.Md. 2010)(denying plaintiffs’ motion to compel discovery; their “discovery efforts [were]
premature” because no discovery conference had occurred, and no scheduling order had
been entered)(citing Fed. R. Civ. P. 26(d)(1), 26(f)). Since the discovery requests at issue
in this motion were prematurely propounded, Miller was not required to timely respond to
such requests.
Secondly, even assuming Joffrion had waited until after a discovery planning
conference occurred to propound the subject discovery requests, his motion should
nevertheless be denied relative to his requests for admission because he did not allow the
thirty (30) day response period provided in Fed. R. Civ. P. 36(a) to expire prior to filing his
motion to compel responses to the requests for admission.2 Thirdly, Joffrion’s motion
should be denied because he failed to submit a certification with his motion that he
conferred (or attempted to confer) with the defendants prior to filing the present motion in
an effort at resolving the discovery dispute without court intervention as required by Fed.
R. Civ. P. 37(a)(1). See, Fed. R. Civ. P. 37(a)(1)(“On notice to other parties and all
affected persons, a party may move for an order compelling disclosure or discovery. The

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Pursuant to Fed. R. Civ. P. 36(a), a party may serve on any other party a written request to
admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1)
relating to facts, the application of law to fact, or opinions about either; and relating to the genuineness of
any described documents. Such matters are admitted unless, within thirty (30) days after being served,
the party upon whom the request is directed serves on the requesting party a written answer or objection
asserted to the matter and signed by the party or its attorney. Fed. R. Civ. P. 36(a). Because Joffrion’s
requests for admission were propounded on October 24, 2011, his present motion, which was filed on
November 15, 2011, was filed before the thirty (30) day response period had expired and is therefore
premature as it relates to such requests.

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motion 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”).3
Finally, Joffrion’s motion should be denied as moot because, although Miller was not
required to respond to Joffrion’s premature discovery requests, he did so on November 18,
2011, in light of the fact that Joffrion is a pro se litigant and in an effort at moving this case
forward. See, Exhibit A to defendants’ opposition, November 18, 2011 correspondence to
Joffrion enclosing responses to his discovery requests.
Accordingly;
IT IS ORDERED that the Motion to Compel Defendants to Complete Discovery (R.
Doc. 16) filed by plaintiff, Troy D. Joffrion, is hereby DENIED as premature, procedurally
deficient, and/or moot.
Signed in chambers in Baton Rouge, Louisiana, November 30, 2011.

MAGISTRATE JUDGE CHRISTINE NOLAND

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According to defendants’ opposition, no discovery dispute conference occurred in this matter
prior to the filing of the present motion.

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