Racine v. P.H. Las Vegas, LLC

Filing 41

ORDER Denying 33 Motion to Compel. Joint Status Report due by 1/6/2012. Signed by Magistrate Judge Cam Ferenbach on 12/7/11. (Copies have been distributed pursuant to the NEF - ASB)

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1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 VANESSA RACINE, 5 Plaintiff, 6 v. 7 PHW LAS VEGAS, LLC, et al., 8 Defendants. 9 *** ) ) ) ) ) ) ) ) ) ) 2:10-cv-01651-LDG -VCF ORDER 10 Before the court is plaintiff Vanessa Racine’s Motion To Compel. (#33). Defendants PHW Las 11 Vegas, LLC and PHW Manager, LLC (hereinafter collectively “PHW”) filed an Opposition (#37), and 12 plaintiff filed a Reply (#38). 13 Plaintiff filed her complaint on September 24, 2010 (#1), alleging that defendants PHW were 14 negligent when they failed to implement security procedures to protect their patrons from individuals 15 following them to their rooms and robbing, assaulting, and committing other crimes against them. 16 Plaintiff asserts that she was “violently assaulted physically and sexually” as a result of defendants’ 17 breach of their duty to check if individuals seeking access to the rooms were in fact guests of the hotel 18 or invitees. (#33). Defendants contend that no such duty exists, and assert that they cannot be held 19 liable for plaintiff’s alleged injuries or damages. (#37). 20 Motion To Compel (#33) 21 A. Background/Arguments 22 On April 11, 2011, defendants received plaintiff’s first set of interrogatories and first request for 23 production of documents. (#33). On May 11, 2011, defendants provided responses to plaintiff’s 24 discovery requests. Id. Defendants objected to forty-seven (47) of the requests, and of the twenty-five 25 interrogatories, defendants answered only four, while still asserting objections thereto. Id. The 26 defendants’ responses consisted of four common objections: (1) the request/interrogatory seeks 1 information relating to the entire hotel, which is not relevant, because the incident occurred exclusively 2 on the elevators and in a room of the guest tower, (2) no protective order is in place, (3) plaintiff failed 3 to limit the discovery requests to a reasonable time period, as defendants did not own the casino during 4 several years within the time-frame specified in the request/interrogatory, and (4) that defendants were 5 uncertain as to the meaning of several terms and phrases used in the request/interrogatory. Id. 6 On May 23, 2011, plaintiff sent a letter to defendants asserting that defendants must withdraw 7 their objections and provide the answers and documents requested. Id. Defendants never addressed the 8 issues in plaintiff’s letter, and insisted on a protective order. Id. Plaintiff contends that she refrained 9 from filing the present motion to compel until a protective order could be entered. Id. On October 3, 10 2011, defendants assert that the parties spoke on the phone regarding extending discovery deadlines and 11 the status of obtaining a protective order to govern some of the requested material. (#37). The parties 12 did not discuss the May 23, 2011, letter or the non-protective order related objections. Id. With the 13 exception of this one telephone conversation, defendants’ counsel asserts, plaintiff’s counsel 14 communicated with defense counsel solely via email, despite defense counsel continuously insisting that 15 communications be via telephone or written letters. Id. 16 On October 5, 2011, defendants’ counsel provided plaintiff’s counsel with a 17 page proposed 17 protective order. Id. However, after plaintiff provided comments and changes to the protective order, 18 the parties were unable to reach an agreement. Id. Plaintiff contends that on October 24, 2011, she 19 submitted an electronic message advising defendants that a motion to compel would be filed. Id. On 20 October 27, 2011, plaintiff filed the present motion to compel1. (#33). 21 Defendants allege that the motion should be denied, because at not time did plaintiff sincerely 22 attempt to meet and confer with defendants regarding the discovery dispute. (#37). Defendants contend 23 that plaintiff only sent the demanding letter on May 23, 2011, and never engaged in any meaningful 24 1 25 26 The court notes that the body of the motion to compel (#33) is identical to the May 23, 2011, demand letter (#33 Exhibit 5) to defendants. 2 1 attempt to resolve the issues without the court’s intervention, and never spoke either on the phone or 2 face to face regarding the alleged deficient responses. Id. Defendants also argue that plaintiff waited 3 four months after sending the May 23, 2011, letter before raising the issue again. Id. Since the parties 4 could not agree on the substance of the protective order, the defendants assert that they will be filing 5 a motion for protective order with the court. Id. To date, no motion for protective order has been filed. 6 B. Discussion 7 The court finds that both parties have not acted appropriately with regards to the discovery 8 dispute. Plaintiff did not conduct a meaningful meet and confer in an attempt to resolve the dispute 9 without the court’s intervention, as she never discussed the dispute personally or telephonically with 10 defendants’ counsel, and only sent a demanding letter for supplemental responses. Federal Rule of Civil 11 Procedure 37(a)(1); Local Rule 26-7(b)(stating that “[d]iscovery motions will not be considered unless 12 a statement of the movant is attached thereto certifying that, after personal consultation and sincere 13 effort to do so, the parties have been unable to resolve the matter without court action.”)(emphasis 14 added). Defendants have not filed a motion for protective order with the court, despite objecting to at 15 least twenty-three discovery requests because a protective order was not in place and conveying to the 16 court their intention to file such a motion. 17 Since the parties have expressed that they cannot agree on a protective order, the court has 18 prepared and is entering a protective order in conjunction with this order. The parties shall, within 19 fourteen days from the entry of this order, meet and confer and file a joint request for modifications of 20 the protective order. The parties must meet face to face and confer within ten days from the entry of 21 this order in an attempt to resolve the discovery issues. The parties shall file a joint status report by 22 January 6, 2012, informing the court of any remaining discovery issues. 23 Accordingly, and for good cause shown, 24 IT IS ORDERED that plaintiff Vanessa Racine’s Motion To Compel (#33) is DENIED as 25 discussed above. The parties must meet face to face and confer within ten days from the entry of this 26 3 1 order and shall file a joint status report by January 6, 2012, informing the court of any remaining 2 discovery issues. 3 DATED this 7th day of December, 2011. 4 5 6 CAM FERENBACH UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4

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