Warner v. Curry et al

Filing 87

ORDER denying 73 Motion to Compel Signed by Magistrate Judge Jeremiah C. Lynch on 1/16/2019. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

DANNY LEE WARNER, JR.,
CV 17-104-M-DLC-JCL
Plaintiff,
vs.

ORDER

CHUCK CURRY, JENNIFER ROOT,
JAMES DUSING, TAMMY BOWEN,
SGT. SCHUELEN, and CBM
MANAGED SERVICES,
Defendants.
Plaintiff Danny Warner, appearing pro se, moves for an order compelling all
Defendants to fully and properly respond to discovery requests he submitted to
each of them. After he filed his motion, Warner and Defendant James Dusing
resolved the discovery dispute between the two of them, and by Order entered
January 2, 2019, the Court recognized Warner’s withdrawal of his motion to
compel as it pertains to Dusing. (Doc. 82.)
With respect to Defendants Chuck Curry, Jennifer Root, and Sgt. Schuelen,
Warner’s motion to compel asserts they entirely failed to provide any discovery
responses to him at all. On December 24, 2018, Curry, Root and Schuelen filed
their brief in opposition to Warner’s motion to compel explaining that they did, in
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fact, serve their discovery responses upon Warner on October 24, 2018, and they
provided the Court with a copy of their responses which includes a certificate of
service dated October 24, 2018. (Doc. 76-1 at 18 of 179.)
In his reply brief, Warner advises he has now, for the first time, received
Curry, Root and Schuelen’s discovery responses which were attached to his copy
of their brief in opposition to his motion to compel. Thus, because Warner is now
in possession of these Defendants’ discovery responses, his motion to compel
production of those responses is moot.
In his reply brief Warner proceeds to asserts various challenges to the
sufficiency or adequacy of the discovery responses he has now received from
Curry, Root and Schuelen. And he purports to “renew” his motion to compel based
on the challenges he now identifies in his reply brief. But as Warner knows, before
he can seek a motion to compel production of more complete discovery responses,
he must first attempt to confer with those Defendants in an effort to resolve his
challenges as required by Fed. R. Civ. P. 37(a)(1) and L.R. 26.3(c)(1). Therefore,
the Court cannot address Warner’s challenges raised in his reply brief.
With regard to discovery responses he received from CBM Managed
Services, Warner’s motion to compel asserts only that CBM Managed Services
“completely avoided all interrogatories and did not produce a single document in
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response to Plaintiff’s request.” (Doc. 73 at 1.) But Warner does not present an
itemized discussion of specific discovery requests he contends CBM Managed
Services failed to properly answer.
Additionally, Warner’s motion complains CBM Managed Services did not
sign its answers to interrogatories as required by Fed. R. Civ. P. 33(a)(5). With
regard to the signature, CBM Managed Services responds by representing it will
supplement its interrogatory answers with a notarized signature from its authorized
representative, and will provide it to Warner.
With regard to the substance of Warner’s motion to compel, CBM Managed
Services complains, through its counsel’s representations in its brief, that Warner
did not confer with its counsel in an attempt to resolve the discovery disputes
raised in Warner’s motion to compel as required by L.R. 26.3(c)(1). Specifically, it
states its “counsel did not receive a telephone call, facsimile, letter, email, nor any
other written or electronic communication from Plaintiff regarding the motion [to
compel].] (Doc. 78 at 2.) Therefore, it requests the Court deny Warner’s motion to
compel.
A motion to compel discovery must contain a certification stating “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
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action.” Fed. R. Civ. P. 37(a)(1). Similarly, the Local Rules of this Court require
that the parties must confer “concerning all disputed issues before the motion is
filed.” L.R. 26.3(c)(1). The Rule requires an actual discussion between parties as
“[t]he mere sending of a written, electronic, or voicemail communication does not
satisfy this requirement. Rather, this requirement can be satisfied only through
direct dialogue and discussion in a face to face meeting (whether in person or by
electronic means), in a telephone conversation, or in detailed, comprehensive
correspondence.” L.R. 26.3(c)(1).
In his motion Warner certifies that he attempted to confer with CBM
Managed Services through collect calls, but his calls were not accepted. He also
states he sent a letter to CBM Managed Services on October 24, 2018, but that he
did not receive a response to the letter. (Doc. 73-1 at 37 of 38.) For unexplained
reasons, however, CBM Managed Services did not receive Warner’s letter.
Under the circumstances, in the interest of judicial economy and the spirit of
the “meet and confer” requirements, the Court will require Warner and CBM
Managed Services to engage in actual discussions in a good faith attempt to resolve
Warner’s complaints as to the alleged inadequacies of CBM Managed Services’
discovery responses as required by L.R. 26.3(c)(1). In view of Warner’s
incarceration, CBM Managed Services shall actively assist in arranging this “meet
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and confer” discussion with Warner.
The Local Rules provide that “[t]he court will deny any discovery motion
unless the parties have conferred concerning all disputed issues before the motion
is filed.” L.R. 26.3(c)(1). Therefore, the Court will deny Warner’s motion as to
CBM Managed Services.
Based on the foregoing, IT IS HEREBY ORDERED that Warner’s motion
to compel is DENIED subject to his right to renew the motion following
compliance with his obligation to confer with any party who he believes has failed
to provide full, complete, and proper discovery responses.
DATED this 16th day of January, 2019.

________________________________
Jeremiah C. Lynch
United States Magistrate Judge

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