Baker et al v. Kroger Limited Partnership I et al

Filing 19

ORDER dismissing 17 Motion to Compel Without Prejudice and ORDERING Sanctions Against Plaintiffs. Signed by Magistrate Judge S. Allan Alexander on 05/13/16. (sd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
LORI BAKER and
THOMAS BAKER

v.

PLAINTIFFS

CIVIL ACTION NO. 3:15-CV-161-MPM-SAA

KROGER LIMITED PARTNERSHIP I
d/b/a KROGER #473; and
THE KROGER COMPANY

DEFENDANTS

ORDER DISMISSING MOTION TO COMPEL WITHOUT PREJUDICE AND
ORDERING SANCTIONS AGAINST PLAINTIFFS
On April 25, 2016 defendants Kroger Limited Partnership I and the Kroger Company
(“Kroger”) filed a motion to compel plaintiffs to respond to defendants’ first set of
interrogatories and requests for production of documents and things. Docket 17. Defendant
propounded the first set of interrogatories and first requests for production to plaintiffs on
January 8, 2016. Docket 14. Defendants claim the plaintiffs never responded to written
discovery, which was due on or before February 10, 2016.
According to defendants’ motion and the accompanying affidavit of defense counsel,
defense counsel sent two letters to plaintiffs’ counsel after the response deadline of February 10,
2016 passed. Docket 17-4. Plaintiffs’ counsel neither responded to the good-faith letters, nor
executed the proposed good-faith certificate required by the Local Rules of this court. Id.
Plaintiffs did not file a notice of service of discovery responses until May 10, 2016, fifteen days
after defendants were forced to file their motion to compel. Docket 17. Plaintiffs have yet to
respond to the motion to compel.
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Rule 26(b) of the FEDERAL RULES OF CIVIL PROCEDURE provides that “[p]arties may
obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or
defense. . . .” The requested information falls within the scope of proper discovery and should
have been provided by the plaintiffs. Rule 37 of the FEDERAL RULES OF CIVIL PROCEDURE and
LOCAL UNIFORM CIVIL RULE 37 provide the method and requirements necessary for a party
seeking a court order compelling discovery responses. FED. R. CIV. P. 37, L.U. CIV. R. 37.
Defense counsel complied with all necessary requirements of the rules. Because plaintiffs
appear to have responded to defendants’ discovery, defendants motion to compel will be
dismissed without prejudice. Defendants are free to challenge the sufficiency of the discovery
responses if that becomes an issue.
Rule 37(a)(5)(A) provides that “[i]f the motion is granted – or if the disclosure or
requested discovery is provided after the motion was filed – the court must, after giving an
opportunity to be heard, require the party or deponent whose conduct necessitated the motion,
the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses
incurred in making the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). The
court finds that the plaintiffs’ complete failure to communicate in good-faith with defense
counsel, particularly in combination with their failure to serve discovery responses until well
after the motion to compel was filed and their failure to respond at all to the motion itself,
warrants sanctions. Accordingly, it is
ORDERED:
Defendants’ motion to compel is DISMISSED WITHOUT PREJUDICE. Plaintiffs or
their counsel are ORDERED to pay defendants’ reasonable attorney’s fees and expenses

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incurred in complying with the court’s procedural rules and in filing the instant motion to
compel.1 Defendants’ counsel must submit an itemized statement to plaintiffs’ counsel within
fourteen days of the date of this order. Counsel for plaintiffS will have fourteen days to remit
payment to defendants or to file any objections to the itemization. Plaintiff is warned that
continued complete failure to respond in this matter to either defendants or the court may lead to
more serious sanctions including, but not limited to dismissal of plaintiffs’ claims.
This the 13th day of May, 2016.

/s/ S. Allan Alexander
UNITED STATED MAGISTRATE JUDGE

1

Plaintiffs and their counsel are in the best position to determine whether the failure is
attributable to one of both of them, but the payment must be made in any event.
3