Crittenden v. City of Omaha et al

Filing 31

ORDER Defendants' Motion to Compel Initial Disclosures (Filing No. 30 ) is granted. Plaintiff shall have until August 26, 2016, to serve his Rule 26(a)(1) mandatory disclosures on Defendants and to file certification of the service pursuant to NECivR 26.1. Plaintiff shall have until August 26, 2016, to show cause why sanctions, including the award of attorneys' fees under Rule 37 should not be imposed. Ordered by Magistrate Judge F.A. Gossett. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DEANDRE CREITTENDEN,
Plaintiff,
v.
CITY OF OMAHA, a political
subdivision, and PAUL HASIAK,
both individually and officially as an
officer of the Omaha Police
Department,
Defendants.

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8:15CV427
ORDER

This matter comes before the court on Defendants’ Motion to Compel Initial
Disclosures (Filing No. 30). Plaintiff did not file a response to this motion.
On June 7, 2016, after reviewing the parties’ Rule 26(f) planning report, the court
entered an initial progression order directing all parties to serve the mandatory disclosures
described in Fed. R. Civ. P. 26(a)(1) by July 8, 2016. (Filing No. 28). Defendants state
they have not received Plaintiff’s mandatory disclosures nor has Plaintiff’s counsel
responded to emails regarding the status of Plaintiff’s mandatory disclosures. After
attempting to confer with Plaintiff, Defendants filed the instant motion to compel pursuant
to Fed. R. Civ. P. (a)(3)(A), which provides, “If a party fails to make a disclosure required
by Rule 26(a), any other party may move to compel disclosure and for appropriate
sanctions.” Defendants certified that, prior to filing this motion, they made good faith
efforts to confer with Plaintiff regarding the failure to file his mandatory disclosures.
(Filing No. 30); See Fed. R. Civ. P. 37(a)(1). Plaintiff did not respond to Defendants’
emails, filed no response to this motion to compel, and has not requested an extension of
time to serve the mandatory disclosures. In consideration of the above, the court finds
Defendants’ motion to compel should be granted.

Plaintiff is ordered to make his

mandatory disclosures pursuant to Rule 26(a)(1) and the initial progression order.
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Defendants also request appropriate sanctions, including reasonable attorney fees,
associated with filing the instant motion. Fed. R. Civ. P. 37(a)(5)(A) provides that if a
motion to compel disclosure or discovery 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.” Attorney’s fees and
costs are not awarded if “(i) the movant filed the motion before attempting in good faith to
obtain the disclosure or discovery without court action; (ii) the opposing party’s
nondisclosure, response, or objection was substantially justified; or (iii) other
circumstances make an award of expenses unjust.” Id. Defendants’ counsel certifies she
attempted in good faith to obtain Plaintiff’s mandatory disclosures from Plaintiff’s counsel
before filing the present motion. Plaintiff’s failure to serve his mandatory disclosures
required Defendant to file a motion to compel. The court shall, after Plaintiff has a chance
to respond, grant Defendants reasonable expenses for filing such motion, unless Plaintiff
shows substantial justification for the failure to provide the disclosures or other
circumstances make an award of expenses unjust.

See Fed. R. Civ. P. 37(a)(5).

Accordingly,

IT IS ORDERED:
1.

Defendants’ Motion to Compel Initial Disclosures (Filing No. 30) is granted.

2.

Plaintiff shall have until August 26, 2016, to serve his Rule 26(a)(1)
mandatory disclosures on Defendants and to file certification of the service
pursuant to NECivR 26.1.

3.

Plaintiff shall have until August 26, 2016, to show cause why sanctions,
including the award of attorneys’ fees under Rule 37 should not be imposed.

DATED: August 8, 2016.
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BY THE COURT:
s/ F.A. Gossett
United States Magistrate Judge

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