Moore v. Lightstorm Entertainment et al
Filing
239
MEMORANDUM OPINION. Signed by Magistrate Judge Charles B. Day on 11/18/2016. (kns, Deputy Clerk)(c/m 11/18/16)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BRYANT MOORE,
Plaintiff,
v.
LIGHTSTORM ENTERTAINMENT,
et al.,
Defendants.
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Civil Action No. RWT-11-3644
MEMORANDUM OPINION
Defendants, Lightstorm Entertainment, James Cameron, and Twentieth Century Fox Film
Corporation, submit before this Court their Motion to Compel (“the Motion”) (ECF No. 233).
Plaintiff Bryant Moore filed a response, pro se, in Opposition to the Motion. The Court has
reviewed the parties’ submissions and applicable law. No hearing is deemed necessary. See
Local Rule 105.6 (D. Md.). For the reasons presented below, the Court DENIES the Motion
without prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff initiated a copyright action against Defendants on December 19, 2011 (ECF No.
1). On January 31, 2015, this Court granted Defendants Motion for Summary Judgment and
awarded costs in favor of Defendants (ECF No. 176). On August 31, 2015, the Court ordered
Plaintiff to pay taxable costs in the amount of $30,028.25 (ECF No. 218), and on September 1,
2015, the Court awarded attorney’s fees in the amount of $741,785.00 and nontaxable costs in
the amount of $435,735.00 (ECF No. 220). In total, the judgment against Plaintiff amounts to
$1,207,548.25 in attorney’s fees and costs. The Fourth Circuit affirmed the Court’s judgment on
March 15, 2016 (ECF No. 226).
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On March 30, 2016, Defendants served fifteen written interrogatories and fifteen
document requests on Plaintiff. Defs.’ Mot. 2. Plaintiff’s responses were due by May 2, 2016,
but Plaintiff failed to respond. Id. at 3. Defendants’ counsel then sent Plaintiff an email on May
12, 2016, informing him that Defendants intended to file a motion to compel, and also requested
a meeting with Plaintiff to “confer regarding the discovery.” Id. Plaintiff has similarly not
responded to this request. Id. at 4.
DISCUSSION
Rule 69(b) permits a judgment creditor to obtain discovery “[i]n aid of the judgment or
execution . . . as provided in [the Federal Rules] or by the procedure of the state where the court
is located.” Fed. R. Civ. P. 69(b). The Maryland Rules also allow for a judgment creditor to
“obtain discovery to aid enforcement of a money judgment [] by use of depositions,
interrogatories, and requests for documents[.]” Md. Rules 2-633.1 Rule 37 allows the Court to
compel a party to respond to discovery requests when a party fails to respond to discovery
requests. Fed. R. Civ. P. 37. The Court has broad discretion in whether to grant or deny a
motion to compel. See Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922,
929 (4th Cir. 1995) (reviewing denial or granting of motions to compel for abuse of discretion).
I.
Defendants failed to comply with Local Rule 102.1(c).
Local Rule 102.1(c) requires for proof of service:
[A]ll court documents other than the original complaint must bear a signed
certificate signed by counsel stating that the service required by Fed. R. Civ. P.
5(a) has been made.
(Emphasis added.)
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In his response in opposition, Plaintiff argues that Defendants are not entitled to the information they are
requesting because the discovery process has already been completed. Opp’n Mot. 4. Plaintiff points to the
discovery deadlines set forth in the parties’ Scheduling Order and argues that because that date has passed, the
window for discovery has closed. Id. at 5. However, Plaintiff’s argument fails as it directly contradicts Rule 69 and
Maryland Rule 2-633, which expressly permit post-judgment discovery for aiding in the judgment or its execution.
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Defendants have included as Exhibit D, attached to the Motion, the Certificate of Service
for Defendants’ post-judgment discovery requests. The Certificate of Service is signed,
however, by the “Assistant to” one of Defendants’ counsel. Local Rule 102.1(c) expressly
requires a “certificate signed by counsel” and does not provide an option for a signature from the
counsel’s assignee.
The purpose of Local Rule 102 is to ensure effective delivery and receipt of discovery
and pleadings among the parties, and the rule intentionally holds the parties’ counsel responsible
for that task. With this understanding, Defendants have the opportunity to cure the deficiency in
their Certificate of Service by providing evidence of Plaintiff’s receipt of the discovery demands.
Such evidence can be in the form of a receipt from Federal Express with a supporting affidavit or
by a reference to Plaintiff’s admission that he did in fact receive the discovery requests.
Provided that Defendants can satisfy this requirement to comply with the spirit and purpose of
Local Rule 102.1(c), the Court will GRANT IN PART a supplemental motion as explained
below.
II.
Defendants’ requests are discoverable.
Defendants made a proper motion to compel discovery under Local Rule 104.8, which
requires the parties to exchange their motions and responses, then discuss the dispute before
filing anything with the Court. However, exempted from these procedures are “requests for
production . . . where no responses at all have been served.” Local Rule 104.8. Plaintiff has not
responded in writing to Defendants’ discovery requests. Defendants also filed a certificate
reflecting their attempt to hold a discovery dispute conference, as required by Local Rule 104.7,
to which Plaintiff did not respond. As such the Motion has properly been filed.
Defendants seek discovery responses for the following:
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1) Information concerning Plaintiff’s employment, income and tax returns (Document
Requests 2 and 14; Interrogatories 1, 2, 4, and 14).
2) Information concerning Plaintiff’s bank accounts (Document Requests 1 and 10;
Interrogatory 5).
3) Information concerning Plaintiff’s retirement accounts, stocks, and bonds (Document
Requests 10 and 11; Interrogatories 10 and 11).
4) Information concerning Plaintiff’s real property (Document Request 5; Interrogatory
6).
5) Information concerning Plaintiff’s personal property (Document Request 6;
Interrogatories 5 and 7).
6) Information concerning Plaintiff’s intellectual property (Document Requests 3 and 4;
Interrogatory 3).
7) Information concerning any debts owed to Plaintiff (Document Requests 8, 9, 12, 13,
and 15; Interrogatories 8, 9, 12, and 13).
Defs.’ Mot. 3.
Request for Production of Documents No. 4.
The Court anticipates GRANTING this request. Request for Production Number 4 asks
Plaintiff to “[p]roduce all copies of all screenplays, film or television treatments, novels, short
stories and other copyrighted works” that he owns. If the Motion is granted, Plaintiff can
produce copies of the requested documents or make the originals available for inspection.
Request for Production of Documents Nos. 12 and 15; Interrogatory No. 12.
The Court anticipates DENYING these requests as not being relevant to the issue of the
discovery of Plaintiff’s assets.
The remainder of the requested documents and interrogatories, including bank account
information and personal property information, are discoverable and are relevant to the issue of
the discovery of Plaintiff’s assets. Plaintiff has not provided any compelling arguments as to
why he should not respond to Defendants’ discovery requests. See note 1, supra. Furthermore,
even if Plaintiff had provided any viable objections in opposition to the requests, such objections
will be considered waived if proper service was made. If a party fails to timely serve objections
and responses to discovery requests, the party waives any objections unless the Court finds good
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cause to excuse the failure to respond. Fed. R. Civ. P. 33(b)(4); Hall v. Sullivan, 231 F.R.D. 468,
473 (D. Md. 2005) (explaining that “the procedures under Rule 34 were intended to be governed
by the same procedures applied under Rule 33,” and that the procedure set out in Rule 33(b)(4),
that objections not timely stated in an answer are waived, also applies to Rule 34). Defendants’
supplemental motion will therefore be granted to facilitate the execution of the prior judgment if
they can provide sufficient proof of service for the discovery requests.
CONCLUSION
For the foregoing reasons, the Court DENIES without prejudice Defendants’ Motion to
Compel for failure to satisfy the Proof of Service requirements of Local Rule 102.1(c).
Defendants have ten (10) calendar days to remedy this deficiency by providing proof of receipt
by Plaintiff.
November 18, 2016
/s/
Charles B. Day
United States Magistrate Judge
CBD/xl
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