McCarty v. Roos et al

Filing 295

ORDER denying without prejudice 293 Motion to Compel. Signed by Magistrate Judge Nancy J. Koppe on 9/9/2014. (Copies have been distributed pursuant to the NEF - DKJ)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ROBERT JOSEPH MCCARTY,
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Plaintiff(s),
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vs.
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JOHN V. ROOS, et al.,
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Defendant(s).
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Case No. 2:11-cv-01538-JCM-NJK
ORDER DENYING MOTION TO
COMPEL
(Docket No. 293)

Pending before the Court is a Motion to Compel, filed on September 8, 2014. Docket No. 293.
For the reasons discussed below, the motion is hereby DENIED without prejudice.

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The Court’s initial inquiry regarding a motion to compel is whether the movant made adequate

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meet and confer efforts. Federal Rule of Civil Procedure 37(a)(1) requires that a motion to compel

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discovery “must include a certification that the movant has in good faith conferred or attempted to

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confer” with the non-responsive party. Similarly, Local Rule 26-7(b) provides that “[d]iscovery motions

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will not be considered unless a statement of the movant is attached thereto certifying that, after personal

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consultation and sincere effort to do so, the parties have not been able to resolve the matter without

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Court action.”

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The case law in this District is clear that “personal consultation” means the movant must

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“personally engage in two-way communication with the nonresponding party to meaningfully discuss

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each contested discovery dispute in a genuine effort to avoid judicial intervention.” ShuffleMaster, Inc.

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v. Progressive Games, Inc., 170 F.R.D. 166, 171-72 (D. Nev. 1996). This obligation “promote[s] a

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frank exchange between counsel to resolve issues by agreement or to at least narrow and focus matters

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in controversy before judicial resolution is sought.” Nevada Power v. Monsanto, 151 F.R.D. 118, 120

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(D.Nev.1993). To meet this obligation, parties must “treat the informal negotiation process as a

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substitute for, and not simply a formal prerequisite to, judicial review of discovery disputes.” Id. This

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is done when the parties “present to each other the merits of their respective positions with the same

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candor, specificity, and support during the informal negotiations as during the briefing of discovery

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motions.” Id. “Only after all the cards have been laid on the table, and a party has meaningfully assessed

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the relative strengths and weaknesses of its position in light of all available information, can there be

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a ‘sincere effort’ to resolve the matter.” Id. To ensure that parties comply with these requirements,

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movants must file certifications that “accurately and specifically convey to the court who, where, how,

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and when the respective parties attempted to personally resolve the discovery dispute.” ShuffleMaster,

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170 F.R.D. at 170.

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The Court has reviewed the pending Motion to Compel, and the Court has not located any

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certification of any attempts to confer with Defendants’ counsel. Docket No. 293. Accordingly, the

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Motion to Compel is hereby DENIED without prejudice.

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IT IS SO ORDERED.

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DATED: September 9, 2014

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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