Toelle v. Walmart Associates Inc.

Filing 17

ORDER granting 15 Motion to Compel and authorizing the award of sanctions. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GLORIA TOELLE,
Plaintiff,

7:14CV5008

vs.
ORDER
WALMART ASSOCIATES, INC.,
Defendant.
The defendant previously moved to compel the plaintiff’s discovery responses, (Filing
No. 10), stating that despite its communications with plaintiff’s counsel, the plaintiff had
provided no response to defendant’s Written Interrogatories and Requests for Production of
Documents served over two months earlier. That motion was withdrawn when the plaintiff
thereafter served discovery responses.
The defendant now brings a second motion to compel, stating that “[a]fter reviewing the
documents that were requested as opposed to the Documents produced, Walmart’s counsel
discovered that a great number of documents were not produced as requested,” including
documents explaining plaintiff’s alleged “past medical expenses in excess of $276,000.00,”
(Filing No. 15), and the records of her alleged twelve medical providers. (Filing No. 16-1).

Defense counsel attempted to resolve the issue with plaintiff before filing a second
motion to compel, but to no avail. The currently pending motion to compel was filed on
February 20, 2015. (Filing No. 15). The plaintiff did not respond to the motion, and the
deadline for doing so has passed. The motion is deemed unopposed, and the facts submitted in
support of the motion are deemed admitted. The court finds the plaintiff’s failure to comply with
discovery is not substantially justified.

Accordingly,

1)

The defendant’s motion to compel, (Filing No. 15), is granted.

2)

The plaintiff shall fully respond to the defendant’s discovery requests by

no later than March 31, 2015. The failure to do so will result in further sanctions,
up to and including prohibiting the plaintiff from introducing documentary or
testimonial evidence supporting her claim of injury and related damages arising
from the alleged accident at issue, or dismissal of Plaintiff’s claims in their
entirety.

3)

The defendant’s request for an award of attorney fees and costs is granted,

and

a.

On or before March 27, 2015, defense counsel shall serve
plaintiff’s counsel with an itemization of defense counsel’s fees
and costs incurred in filing both motions to compel.

b.

Plaintiff’s counsel shall respond to this itemization within ten
calendar days thereafter.

c.

If the parties agree as to the amount to be awarded, on or before
April 6, 2015, they shall file a joint stipulation for entry of an order
awarding costs and fees to the defendant.

d.

If the parties do not agree on the attorney fees and costs to be
awarded, or if the plaintiff does not timely respond to the
defendant’s itemization and demand, the defendant shall file an
application for assessment of attorney fees and costs by no later
than April 13, 2015. This application shall be submitted in
accordance with the court’s fee application guidelines outlined in
Nebraska Civil Rules 54.3 and 54.4.

March 13, 2015.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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