Jacobs v. Wells et al

Filing 28

RULING denying 25 Motion to Compel without prejudice to Plaintiff's right to refile such motion, if necessary, following counsels' participation in the required Rule 37 conference. Signed by Magistrate Judge Erin Wilder-Doomes on 11/14/2017. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JONATHAN JACOBS
CIVIL ACTION
VERSUS
NO. 16-865-BAJ-EWD
JOHN WELLS, ET AL.
RULING ON MOTION TO COMPEL
Before the court is a Motion to Compel Discovery (the “Motion to Compel”) filed by
plaintiff, Jonathan Jacobs (“Plaintiff”). Defendants, Captain John Wells and Lieutenant Michael
W. Collins (“Defendants”), have filed an Opposition.1 Plaintiff has filed a Motion for Leave of
Court to File a Reply (the “Motion for Leave”).2 The Motion for Leave3 is GRANTED. The
Motion to Compel is DENIED WITHOUT PREJUDICE.4
Per the Motion to Compel, Plaintiff seeks an order compelling Defendants to “fully
respond” to certain interrogatories and requests for production of documents. Plaintiff contends
that a letter was sent to defense counsel on September 26, 2017 outlining various deficiencies in
Defendants’ responses, and requesting that counsel for Defendants participate in a discovery
conference pursuant to Fed. R. Civ. P. 37. Based on the communications attached to both the
Motion to Compel and Defendants’ Opposition, it appears that contentious emails were sent back
and forth between counsel for the parties attempting, unsuccessfully, to schedule the required

1

R. Doc. 26.

2

R. Doc. 27.

3

R. Doc. 27.

A motion to compel is a nondispositive, pretrial discovery motion.” State Farm Mut. Auto. Ins. Co. v. Friedman, 98cv-2918, 2002 WL 649417, at *1 (N.D. Tex. Jan. 14, 2002) (citing Castillo v. Frank, 70 F.3d 382, 385 (5th Cir. 1995)).
See, Turner v. Hayden, Civil Action No. 15-2282, 2016 WL 6993864, at *1 (W.D. La. Nov. 29, 2016) (“The decision
by Magistrate Hornsby to deny Turner’s Motion to Compel Discovery is a non-dispositive matter.”).
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discovery conference.5 While a conference was apparently scheduled for October 9, 2017, counsel
for Plaintiff asserts that she “had a family emergency and Defendant’s Counsel agreed to move
the conference to her next available date, October 10, 2017.”6 Counsel for Defendants contends
in turn that “[o]n the morning of October 10, 2017, [she] requested that the October 10,
2017…Discovery Conference be rescheduled because of an unexpected appointment that [defense
counsel] could not miss.”7 Following the cancelation of the October 10, 2017 date, Plaintiff filed
the instant Motion to Compel on October 13, 2017. In opposition to the Motion to Compel,
Defendants argue that Plaintiff’s counsel unreasonably refused to reschedule the Rule 37 discovery
conference and because no conference has taken place, the Motion to Compel should be denied.8
In Reply, Plaintiff contends that the September 26, 2017 deficiency letter and subsequent attempts
to schedule a conference constitute compliance with Rule 37.9
Rule 37(a)(1) of the Federal Rules of Civil Procedure provides that any motion to compel
“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.”10 Failure to comply with the meet and confer requirement may constitute sufficient
5

See, R. Docs. 25-7, 25-8, 25-9, and 26-1. Based on this email correspondence, the court reminds counsel for both
parties of their professional obligation to be civil and courteous to each other.
6

R. Doc. 25, ¶ 11.

7

R. Doc. 26, p. 2.

R. Doc. 26, p. 4. (“Opposing counsel’s refusal to grant the only extension granted [sic] was unreasonable, in light
of the many extensions granted to her. It is clear from the refusal to reschedule the Fed. R. Civ. Proc. 37.1 Discovery
Conference that Plaintiff’s counsel had no intention of participating in said conference in good faith…”).
8

R. Doc. 27-2, p. 3 (“the Defendants were provided with a letter and there were attempts to conference initiated by
the Plaintiff. The Rule requires no more.”); p. 4 (“a letter was sent and efforts were made to set a phone cal.
Defendants did not make any effort to confer and never answered the letter. Here, Defendants made no effort. The
Rule was met.”).
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Similarly, Fed. R. Civ. P. 26(c)(1) provides, in pertinent part:
A party or any person from whom discovery is sought may move for a protective
order in the court where the action is pending – or as an alternative on matters
relating to a deposition, in the court for the discovery where the deposition will
be taken. The motion must include a certification that the movant has in good

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reason to deny a motion to compel. Shaw Grp. Inc. v. Zurich Am. Ins. Co., No. 12-257, 2014 WL
4373197, at *3 (M.D. La. Sept. 3, 2014); see also, Forever Green Athletic Fields, Inc. v. Babcock
Law Firm, LLC, No. 11-633, ECF No. 75 (M.D. La. July 2, 2014) (denying motion to compel
where defense counsel made a single attempt by email to meet and confer and did not do so in a
good faith effort to resolve the dispute without court intervention). “The Rule 37 conference is an
effort to avoid judicial intervention, and the parties must treat the informal negotiation process as
a substitute for, and not simply a formalistic prerequisite to, judicial resolution of discovery
disputes.” Mapp v. UMG Recordings, Inc., Civil Action No. 15-602, 2017 WL 3599166, at * 2,
n. 1 (M.D. La. Aug. 21, 2017).
Although counsel were unsuccessful in scheduling a Rule 37 conference prior to filing the
Motion to Compel, the undersigned is confident that if the parties proceed from this point forward
in good faith, they will be able to resolve many, if not all, of the issues raised in Plaintiff’s Motion
to Compel via an actual Rule 37 conference. Accordingly, the court DENIES Plaintiff’s Motion
to Compel11 without prejudice to Plaintiff’s right to refile such motion, if necessary, following
counsels’ participation in the required Rule 37 conference.
IT IS FURTHER ORDERED, that in the event either party wishes to file a motion to
compel (or other discovery motion) in the future in this matter, such motion must include a detailed
certification setting forth the following: (a) how the conference required by this Ruling was
scheduled and agreed upon, (b) who participated in the conference, (c) when the conference took
place, (d) whether the conference was conducted by phone or in person, (e) the duration of the
conference, (f) the specific, itemized topics that were addressed at the conference, and (g) whether

faith conferred or attempted to confer with the other affected parties in an effort
to resolve the dispute without court action
11

R. Doc. 25.

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any issues were resolved by the parties, and, if so, the terms of the resolution. The parties are
NOTIFIED that failure to submit the detailed certification set forth herein will result in denial of
the discovery motion.12
Signed in Baton Rouge, Louisiana, on November 14, 2017.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

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The undersigned finds it difficult to believe that counsel for the parties, proceeding in good faith and in accordance
with their professional obligations, would be unable to schedule the required conference at some point during a one
week period. Moving forward, any required discovery conferences should be scheduled between counsel for the
parties promptly, reasonable requests to reschedule such conferences due to unforeseen conflicts should be
accommodated, and both counsel should respect each other’s time and other professional obligations.

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