J & J Sports Productions, Incorporated v. Brad's, Incorporated et al

Filing 44

ORDER GRANTING as Unopposed Plaintiff's 31 Motion to Compel--Signed by Magistrate Judge Anthony P. Patti. (Attachments: # 1 Exhibit 1) (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
J&J SPORTS PRODUCTIONS,
INC.,
Plaintiff

Case No. 2:17-cv-11314
District Judge David M. Lawson
Magistrate Judge Anthony P. Patti

v.
BRAD’S, INC. and WILLIAM
BRADLEY,
Defendants.
___________________________________/
ORDER GRANTING AS UNOPPOSED PLAINTIFF’S MOTION TO
COMPEL DISCOVERY AND DEEMING ADMITTED PLAINTIFF’S
DECEMBER 1, 2017 REQUESTS TO ADMIT (DE 31)
This matter is before the Court for consideration of Plaintiff J&J Sports
Productions, Inc.’s (J&J Sports) motion to compel all Defendants to make initial
disclosures pursuant to Fed. R. Civ. P. 26(a)(1)(A) and respond to Plaintiff’s first
set of interrogatories, requests for production of documents, and requests to admit,
which has been referred to me. (DEs 31, 32.) The Court issued a notice ordering
the parties to file a statement of resolved/unresolved issues by April 30, 2018, and
setting this motion for hearing on May 3, 2018. (DE 35.) E.D. Mich. LR 7.1(e)(2)
provides that responses to nondispositive motions are due within fourteen days
after service of the motion. The motion was electronically filed on March 21,
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2018, but no response has been filed and the time for doing so under LR 7.1(e)(2)
has expired.
J&J Sports asserted in its March 21, 2018 motion that Defendants had failed
to serve initial disclosures and failed to respond to Plaintiff’s First Set of
Interrogatories, Requests for Production of Documents, and Requests to Admit,
which were served on Defendants on December 1, 2017. (DE 31.) Following an
April 4, 2018 status conference, Judge Lawson issued an order that Defendants
must serve their responses to all of Plaintiff’s outstanding discovery requests for
written discovery on or before April 9, 2018. (DE 37.) According to Plaintiff’s
statement of unresolved issues, filed on April 30, 2018, Plaintiff received an email
attachment from Defendants’ counsel on April 9, 2018 titled “DISCOVERY AND
ANSWERS TO DISCOVERY.04.09.18” which contained unsigned, incomplete
and deficient discovery responses. (DE 42.) On April 10, 2018, Plaintiff’s counsel
received an email attachment from Defendants’ counsel titled
“SKM_C454e18041015590” which contained six pages, three of which are
completely illegible. (Id.)
This motion was scheduled for hearing on May 3, 2018 at 10:00 am. (DE
35.) The Undersigned’s case manager made repeated efforts by email to ascertain
the status of this dispute and the continued need for a hearing from both counsel,
and was not advised of a need for an adjournment or of any conflict in defense
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counsel’s schedule. (See attached Exhibit 1.) On the date and time set for the
hearing, Dillon Duvall, counsel for Plaintiff appeared, but counsel for Defendants
did not. Attempts by the Undersigned’s case manager to reach Defendants’
counsel by phone between 10:00 am and 10:30 am on the morning of the hearing
were unsuccessful. However, at 10:57 a.m., at the conclusion of the hearing,
counsel for Defendants contacted the Court for the first time and left a voicemail
stating that she had been in state court and would be on her way to this Court. The
Court returned her call and informed her that the hearing had been held and
concluded. For the reasons stated on the record, consistent with my findings and
reasoning stated on the record, all of which are incorporated by reference as though
fully restated herein, Plaintiff’s motion to compel (DE 31) is GRANTED as
unopposed as follows:
1. Plaintiff’s Requests to Admit are DEEMED ADMITTED. See Fed. R.
Civ. P. 36(a)(3) (“A matter is deemed admitted unless, within 30 days
after being served, the party to whom the request is directed serves on the
requesting party a written answer or objection addressed to the matter
and signed by the party or its attorney.”); Kerry Steel, Inc. v. Paragon
Indus., 106 F.3d 147, 153 (6th Cir. 1997) (“Under Rule 36(b), a request
for admissions which is not responded to within the applicable time
period ‘is conclusively established unless the court on motion permits
withdrawal or amendment of the admission.’”). Defendants did not
timely respond to Plaintiff’s requests to admit, did not sign them when
some form of discovery responses were finally turned over to Plaintiff,
and have not sought relief from the operation of Rule 36(a)(3);
2. All of Defendants’ objections to Plaintiff’s First Set of Interrogatories are
DEEMED WAIVED for Defendants’ failure to timely respond to
Plaintiff’s discovery requests. See Fed. R. Civ. P. 33(b)(4); Lairy v.
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Detroit Med. Ctr., No. 12-11668, 2012 WL 5268706, at *1 (E.D. Mich.
Oct. 23, 2012) (“As a general rule, failure to respond to discovery
requests within the thirty days provided by Rules 33 and 34 constitutes a
waiver of any objection.”) (quoting Carfagno v. Jackson Nat’l Life Ins.,
No. 99-118, 2001 WL 34059032, at *1 (W.D. Mich. Feb. 13, 2001)).
Defendants are reminded of their obligation to provide a privilege log
describing any documents withheld as privileged or work product. Fed.
R. Civ. P. 26(b)(5);
3. ON OR BEFORE MONDAY, MAY 21, 2018, and with reference to the
Statement of Unresolved Issues (DE 42), Defendants must:
a. Supplement their answers to Plaintiff’s First Set of Interrogatories
with information reflecting the entity that owned the “East English
Village Bar and Grill” (the “Establishment”) at the initiation of this
litigation and as of December 1, 2017, and not with regard to the
subsequent owner of the establishment as of April 9, 2018;
b. Supplement their responses to Requests for Production of
Document Nos. 10, 12, 14, 16, 19, 22, and 23 on behalf of
Defendant Brad’s, Inc.;
c. Supplement their response to Request for Production of
Documents Nos. 24 and 25, seeking federal and state income tax
filings for the tax year 2014, and, if the information is still
unavailable to Defendants or their counsel, provide signed releases
which would enable Plaintiff to obtain this information directly
from the Internal Revenue Service as well as from Defendants’
accountants, bookkeepers or other tax professionals, along with the
identities and contact information of all such persons;
d. Supplement their response to Request for Production of
Documents No. 33, seeking all telephone bills for the
Establishment that encompass the service dates of May 3, 2014
and the following day by producing the documents or a release to
the appropriate telephone company;
e. Supplement their response to Request for Production of
Documents No. 34, seeking all insurance policies covering the
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Establishment on May 3, 3014 and, if the information is still
unavailable to Defendants or their counsel, provide signed releases
which would enable Plaintiff to obtain this information directly
from Defendants’ insurance agents and insurance carriers, along
with the identities and contact information of all such persons or
companies;
f. Supplement their response to Request for Production of
Documents No. 35, seeking all leases covering the Establishment
on May 3, 2014 and, if the information is still unavailable to
Defendants or their counsel, identify and provide contact
information for the landlord and any leasing company involved on
that date;
g. Supplement their response to Request for Production of
Documents No. 40, seeking all gas bills from gas utility providers
for the Establishment on May 3, 2014 by producing the documents
or a release to the appropriate gas utility company;
h. Produce “Attachments A-E” as referenced in Defendants’
discovery responses;
i. Produce a legible copy of documents emailed to Plaintiff on April
10, 2018, in a file titled “SKM_C454e18041015590”; and
j. Serve signed versions of all previous and supplemental
interrogatory answers and responses to requests to produce,
without objection, in full compliance with Fed. R. Civ. P. 33(b) &
34(b)(2). Counsel for Defendants is directed to carefully read the
full text of these rules, paying special attention to requirements as
to who must sign them and oath requirements.
4. To the extent information required to be produced in initial disclosures,
as specified in Fed. R. Civ. P. 26(a)(1), is not encompassed within
Defendants’ discovery responses, Defendants shall serve that information
on Plaintiff by MONDAY, MAY 21, 2018; and
5. If Plaintiff does not receive the discovery responses ordered herein,
Plaintiff need not file a second motion, but is directed to file a declaration
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or affidavit with the Court stating how the responses remain deficient. If
Defendants remain non-compliant with this Order, Defendants and
their counsel are hereby warned that Court will issue an order to
show cause as to why further sanctions, as specified in Fed. R. Civ. P.
37(b)(2) and (c), up to and including judgment by default and
contempt, should not be awarded against them.
Finally, as stated on the record, Plaintiff is awarded its reasonable “expenses
incurred in making this motion, including attorney’s fees[,]” pursuant to Fed. R.
Civ. P. 37(a)(5). In support of this award, and as directed by the Court from the
bench, counsel for Plaintiff submitted a bill of costs, supported by a declaration.
(DE 43.) Defendants may file specific objections as to the claimed expenses and
attorney’s fees, if any, by MONDAY, MAY 14, 2018, at 5:00 p.m.
IT IS SO ORDERED.

Dated: May 8, 2018

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
Certificate of Service

I hereby certify that a copy of the foregoing document was sent electronically
and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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