Franks v. State of Nebraska

Filing 26

ORDER granting 21 Motion to Compel. Ordered by Magistrate Judge Cheryl R. Zwart. (CRZ)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEFFREY S. FRANKS,
Plaintiff,
v.
STATE OF NEBRASKA,
Defendant.

)
)
)
)
)
)
)
)
)

4:10CV3145

MEMORANDUM AND ORDER

The defendant has moved for an order compelling plaintiff to provide complete
Answers to Defendant’s First Set of Interrogatories under oath and complete Responses to
Defendant’s First Set of Requests for Production of Documents. (Filing No. 21). The
defendant further requests recover of the attorney fees and costs it incurred in filing the
motion to compel.

The plaintiff has not responded to the motion, and the deadline for responding has
passed. The motion is therefore deemed fully submitted.

After reviewing the evidence of record, the court finds the defendant’s motion should
be granted. The court further finds the defendant attempted in good faith to resolve this
discovery dispute before filing a motion to compel, the plaintiff’s failure to fully respond to
discovery at issue on defendant’s motion to compel was not substantially justified, and an
award of attorney fees in favor of the defendant is warranted.
Accordingly,
IT IS ORDERED:
1)

Defendant’s motion to compel, (filing no. 21), is granted.

2)

On or before July 11, 2011, the plaintiff shall provide or produce:

a.

Full and complete answers to defendant’s Interrogatory Nos. 2, 3, 5,
and 6.

b.

A complete set of Interrogatory answers signed under oath by the
plaintiff.

c.

A full and complete response to Request for Production Nos. 1 and 6,
along with a statement, signed under oath, affirming that all responsive
documents have been disclosed.

3)

The plaintiff is hereby notified that absent plaintiff’s complete and timely
compliance with paragraph (2) of this order, his case may be dismissed for
want of prosecution.

4)

As to defendant’s request for attorney fees:
a.

On or before July 8, 2011, the parties shall confer and in good faith
attempt to resolve defendant’s request for the attorney fees and costs
incurred in filing its motion to compel.

b.

If an agreement is not reached on the attorney fee and cost issue, and
the defendant wishes to pursue the claim, the defendant shall submit its
evidence (see NECivR 54.1, 54.3, and 54.4) and supporting brief for
taxation of costs and attorney fees by July 15, 2011, in the absence of
which this claim will be deemed abandoned.

c.

Any response to defendant’s request for attorneys fees and costs shall
be filed on or before July 18, 2011.

d.

No reply shall be granted absent leave of the court for good cause
shown.

DATED this 27th day of June, 2011.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

-2-