Rico v. JBS USA, LLC

Filing 22

ORDER granting 13 Motion to Compel. The plaintiff shall have to on or before February 21, 2014, in which to produce initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1), and respond to the defendant's Interrogatories, with out objections, and Request for Production, and to file certification of the production pursuant to NECivR 26.1, 33.1, and 34.1. The plaintiff shall have to on or before February 21, 2014, to show cause why the defendant should not be awarded reasona ble costs and attorneys fees incurred in bringing this motion to compel, in accordance with Fed. R. Civ. P. 37(a), including involuntary dismissal of the plaintiff's claims. In the alternative to participating in discovery, the plaintiff may, as appears consistent with her instructions to her former attorney, notify the Clerk of Court in writing of her intention to voluntarily withdraw the lawsuit. Ordered by Magistrate Judge Thomas D. Thalken. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

MARIA RICO,
Plaintiff,

8:13CV58

vs.

ORDER

JBS USA, LLC,
Defendant.

This matter is before the court on the defendant’s Motion to Compel Discovery
(Filing No. 13). In support of the motion, the defendant filed the proposed discovery
requests and a letter. See Filing No. 13. The plaintiff did not respond.
On January 18, 2013, the plaintiff filed a lawsuit against the defendant in the
District Court of Hall County, Nebraska. See Filing No. 1-1. The plaintiff’s claims arise
from a September 16, 2010, injury she sustained through her employment with the
defendant and her August 19, 2011, termination.

Id.

On February 21, 2013, the

defendant removed the action to the United States District Court for the District of
Nebraska. See Filing No. 1. On April 23, 2013, the court entered an initial progression
order allowing the parties to begin discovery. See Filing No. 9. The court gave the
parties until May 17, 2013, to exchange mandatory initial discovery pursuant to Federal
Rule of Civil Procedure 26(a)(1). The defendant served the plaintiff with Interrogatories
and Request for Production of Documents on July 23, 2013. See Filing No. 11. On
September 4, 2013, the defendant’s counsel wrote a letter to the plaintiff’s counsel
requesting production of the mandatory initial discovery and responses to the
defendant’s written requests. See Filing No. 13-3. Counsel for the defendant states he
also conferred with the plaintiff’s counsel by telephone in an attempt to obtain the
requested discovery. See Filing No. 3 - Motion ¶ 3.
On September 25, 2013, the defendant filed the motion to compel discovery
responses. See Filing No. 13 - Motion. Subsequently, the plaintiff’s attorney sought
leave to withdraw.

See Filing No. 14.

The plaintiff’s counsel stated, the plaintiff

instructed him to “drop the case.” Id. The plaintiff did not respond to the motion to
withdraw, which was granted on December 17, 2013. See Filing No. 21. The court

allowed the plaintiff, then proceeding pro se, an opportunity to respond to the motion to
compel by January 17, 2013. Id. The plaintiff did not file a response. The court notes
no certificates of service for answers or responses have been filed with the court to
date. See NECivR 33.1 and 34.1.
The Federal Rules of Civil Procedure permit a party to seek discovery related to
another parties’ claims in a lawsuit. See Fed. R. Civ. P. 26. Specifically, each party is
required to identify information about any individuals and documents that may be used
to support her claim. See Fed. R. Civ. P. 26(a)(1). These mandatory initial disclosures
are to be provided to the opposing party without waiting for a discovery request. Id.
Additionally, a party may serve written questions and requests for production of
documents.

See Fed. R. Civ. P. 33 and 34.

The federal rules require the party

receiving the requests to provide objections or responses within thirty days of service.
Id.
The plaintiff has provided the court with no explanation for the delinquent
discovery responses, or good cause for excuse from waiver. Accordingly, the plaintiff
shall provide interrogatory responses without objection and shall produce the requested
documents. Furthermore, the plaintiff shall show cause why sanctions should not be
imposed pursuant to Fed. R. Civ. P. 37(a).
Federal Rule Civil Procedure 37(a)(5)(A) provides:
If the motion [to compel] is granted . . . 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.
The court will not enter an award of reasonable fees if the opposing party’s
nondisclosure was substantially justified or other circumstances make an award of
expenses unjust. See Fed. R. Civ. P. 37(a)(5)(a)(i)-(iii).
The plaintiff’s failure to provide discovery responses required the defendant to file
a motion to compel. The court shall, after the plaintiff has a chance to respond, grant
the defendant reasonable expenses for filing such motion, unless the plaintiff shows
substantial justification for the failure to provide discovery responses or other

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circumstances make an award of expenses unjust. See Fed. R. Civ. P. 37(a)(5). Upon
consideration,

IT IS ORDERED:
1.

The defendant’s Motion to Compel Discovery (Filing No. 13) is granted.

2.

The plaintiff shall have to on or before February 21, 2014, in which to

produce initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1), and
respond to the defendant’s Interrogatories, without objections, and Request for
Production, and to file certification of the production pursuant to NECivR 26.1, 33.1, and
34.1.
3.

The plaintiff shall have to on or before February 21, 2014, to show cause

why the defendant should not be awarded reasonable costs and attorney’s fees
incurred in bringing this motion to compel, in accordance with Fed. R. Civ. P. 37(a),
including involuntary dismissal of the plaintiff’s claims.
4.

In the alternative to participating in discovery, the plaintiff may, as appears

consistent with her instructions to her former attorney, notify the Clerk of Court in writing
of her intention to voluntarily withdraw the lawsuit.

ADMONITION
Pursuant to NECivR 72.2 any objection to this Order shall be filed with the Clerk
of the Court within fourteen (14) days after being served with a copy of this Order.
Failure to timely object may constitute a waiver of any objection. The brief in support of
any objection shall be filed at the time of filing such objection. Failure to file a brief in
support of any objection may be deemed an abandonment of the objection.

Dated this 21st day of January, 2014.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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