Gilder et al v. Wilson et al

Filing 64

MEMORANDUM ORDER denying 61 Motion to Compel as moot. IT IS FURTHER ORDERED that plaintiffs' request for costs is DENIED. Signed by Magistrate Judge Karen L Hayes on 11/19/15. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
JOHNNY GILDER, ET AL.

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CIVIL ACTION NO. 13-3052

VERSUS

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JUDGE DONALD E. WALTER

RAY WILSON, ET AL.

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MAG. JUDGE KAREN L. HAYES

MEMORANDUM ORDER
Before the undersigned magistrate judge, on reference from the District Court, is a motion
to compel discovery responses [doc. # 61] filed by defendants Heart’s Desire, LLC; Ray Wilson;
and ProAssurance Specialty Insurance Company.1 The motion is opposed. For reasons assigned
below, the motion is DENIED.
Background
On February 14, 2014, defendants propounded interrogatories and requests for production
to all four plaintiffs. In April 2014, plaintiffs provided answers and responses to defendants’
former counsel, but answered a number of interrogatories only on behalf of plaintiff Johnny
Gilder. See Ans. to Interr. [doc. # 56, Exh. A]. After defendants’ current counsel enrolled in the
case, he noticed that the file did not include any of plaintiffs’ discovery responses. Accordingly,
he notified plaintiffs’ counsel of the omission, and on December 17, 2014, obtained a copy of the
April 2014 answers and responses.
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As this is not one of the motions excepted in 28 U.S.C. § 636(b)(1)(A), nor dispositive
of any claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil
Procedure, this ruling is issued under the authority thereof, and in accordance with the standing
order of this court. Any appeal must be made to the district judge in accordance with Rule 72(a)
and L.R. 74.1(W).

On December 30, 2014, defense counsel wrote to plaintiffs’ counsel and notified him that
several of the discovery answers and responses omitted information for three of the plaintiffs.
(Dec. 30, 2014, Letter from B. Biller to B. Smith [doc. # 56, Exh. B]). Defense counsel further
noted that some of the responses to the requests for production stated “see attached,” but the
documents were not included in plaintiffs’ counsel’s December 17, 2014, re-production. Id. On
February 20, 2015, defense counsel reminded his counterpart that the discovery deficiencies
identified in his December 30, 2014, letter remained unremedied. (Feb. 20, 2015, Letter from B.
Biller to B. Smith [doc. # 56, Exh. B]).
On September 18, 2015, defendants propounded additional interrogatories and requests
for production. [doc. # 56, Exh. C]. When, by October 19, 2015, plaintiffs failed to respond to
this latest round of discovery, defendants filed the instant motion to compel full and complete
answers and responses to both the February 14, 2014, and the September 18, 2015, discovery
requests.
On November 10, 2015, plaintiffs filed their response to defendants’ motion in which
plaintiffs’ counsel represented that defense counsel did not contact him before filing the instant
motion. He further represented that “[a]s of the date of this filing, Plaintiffs have responded to
all Interrogatories and Request [sic] for Production.” (Pl. Opp. Memo., pg. 2). Plaintiffs also
asked the court to cast movants with the cost of responding to the motion. Defendants did not
file a reply, and the time to do so has lapsed. (Notice of Motion Setting [doc. # 62]).
Analysis
In light of plaintiffs’ representation that they now have responded to all outstanding
discovery, combined with the lack of a reply brief by movants contesting same, the court
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necessarily finds that the motion to compel is moot. Furthermore, because plaintiffs share some
responsibility for the filing of the motion to compel, the court is not inclined to award costs.
Fed.R.Civ.P. 37(a)(5)(B) (reasonable expenses are not permitted if motion was substantially
justified or if an award would prove unjust). Accordingly,
IT IS ORDERED that defendants’ motion to compel [doc. # 61] is DENIED, as moot.
IT IS FURTHER ORDERED that plaintiffs’ request for costs is DENIED.
In Chambers, at Monroe, Louisiana, this 19th day of November 2015.

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KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE

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