Patton v. Wal-Mart Stores, Inc.

Filing 44

ORDER Denying without prejudice 40 Defendant's Motion to Exclude Untimely Disclosed Damages. IT IS FURTHER ORDERED that a motion hearing will be set for 11/15/2013 at 10:00 a.m. in courtroom 3D if, and only if: (1) Wal-Mart and Patton can not resolve the dispute raised by 40 Wal-Marts motion without court intervention and (2) Wal-Mart renews the instant motion before 11/8/2013. Signed by Magistrate Judge Cam Ferenbach on 10/30/2013. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MARGARET A. PATTON,

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2:12–cv–02142–GMN–VCF

Plaintiff,

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vs.
ORDER

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WAL-MART STORES, INC.,
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Defendant.
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Before the court is Defendant Wal-Mart Stores Inc.’s motion to exclude untimely disclosed
damages (#40). Plaintiff Margaret Patton responded (#43). Wal-Mart did not file a reply.

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Wal-Mart’s motion is denied without prejudice. Under Federal Rule of Civil Procedure 37(a)(1)

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and Local Rule 26-7(b), “[d]iscovery motions will not be considered unless a statement of the movant is

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attached thereto certifying that, after personal consultation and sincere effort to do so, the parties have

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been unable to resolve the matter without Court action.” LR 26-7(b); see also Fed. R. Civ. P. 37(a)(1)

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

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confer with the person or party failing to make disclosure or discovery in an effort to obtain it without

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court action”).

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It is axiomatic that failure to comply with Rule 37’s certification requirement or Local Rule 26-

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7(b) warrants the denial of a motion. See Shuffle Master, Inc. v. Progressive Games, Inc., 170 F.R.D.

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166, 172 (D. Nev. 1996) (holding that personal consultation means the movant must personally engage

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in two-way communication with the nonresponding party to meaningfully discuss each contested

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discovery dispute in a genuine effort to avoid judicial intervention).

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In addition to being mandated by the Federal and Local Rules, denying Wal-Mart’s motion is

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appropriate under the court’s equitable powers. Under the current briefing schedule for the instant

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motion, Wal-Mart’s time to file a reply has expired. See LR 7-2(c) (stating that replies must be filed

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within seven days of the nonmoving party’s opposition); see also FED. R. CIV. P. 6(a)(1)(B) (stating that

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weekends are included in the computation of time under the Federal Rules). Denying Wal-Mart’s

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motion without prejudice provides Wal-Mart with an opportunity to file a reply if the parties cannot

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resolve the matter by meeting and conferring.

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Finally, the court notes that a motion hearing on Patton’s motion for the spoliation of evidence

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(#26) is scheduled for November 15, 2013. (See Min. Order #41). In the event that (1) Wal-Mart and

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Patton cannot resolve the dispute raised by Wal-Mart’s motion (#40) without court intervention and

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(2) Wal-Mart renews the instant motion before November 8, 2013, the parties will be prepared to

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address the issues raised by Wal-Mart’s motion (#40) during the November 15, 2013 hearing.

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ACCORDINGLY, and for good cause shown,

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IT IS ORDERED that Wal-Mart’s motion (#40) is DENIED.

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IT IS FURTHER ORDERED that a motion hearing will be set for November 15, 2013 at 10:00

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a.m. in courtroom 3D if, and only if: (1) Wal-Mart and Patton cannot resolve the dispute raised by Wal-

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Mart’s motion (#40) without court intervention and (2) Wal-Mart renews the instant motion before

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November 8, 2013.

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IT IS SO ORDERED.

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DATED this 30th day of October, 2013.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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