Schwartz v. Clark County et al

Filing 25

ORDER Denying without prejudice 21 Motion to Compel. Signed by Magistrate Judge Cam Ferenbach on 1/13/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MARK J. SCHWARTZ,
2:13–cv–709–JCM–VCF

Plaintiffs,

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vs.
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ORDER
CLARK COUNTY, NEVADA, et al.,
Defendants.

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Before the court is Plaintiff Mark J. Schwartz motion to compel (#21). Defendant Clark County
filed an opposition (#23); and Schwartz replied (#24).

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This matter involves a civil rights action under the Age Discrimination in Employment Act, 29

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U.S.C. §§ 621, et seq., the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., and the Civil

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Rights Act of 1871. (See Notice of Removal #1) at 2). In the motion before the court, Schwartz asks the

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court to compel Defendants to produce documents related to: (1) the layoff decision made by the

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Business Licensing Department for Clark County in June 2010 and (2) the transfer and/or
reclassificiation of any business Licesning Department employees from January 2008 to July 2010.

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(Pl.’s Mot. to Compel (#21) at 1:23–26).
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Schwartz’s motion is not without merit. Nonetheless, the court denies Schwartz’s motion without
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prejudice for two reasons. First, Schwartz’s motion is untimely. Discovery closed on November 26,
2013. (See Disc. Plan (#14) at 1:26). Schwartz’s motion was not filed until December 26, 2013, exactly

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one month after the close of discovery. Schwartz has not citied any law or made any legal argument that

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would persuade the court to entertain his motion after the close of discovery.
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Second, Schwartz concedes that the parties failed to meet and confer before filing the instant
motion. (See Pl.’s Reply (#24) at 3:1). Federal Rule of Civil Procedure 37(a)(1) requires a party seeking

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to compel discovery responses to “include a certification that the movant has in good faith conferred or

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attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain

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it without court action.” Additionally, Local Rule 26–7(b) provides that “[d]iscovery motions will not be

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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 been unable to resolve the matter without Court

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action.” LR 26–7(b) (emphasis added).

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The meet and confer requirement of Rule 37 and the personal consultation requirement of LR

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26–7(b) serve important purposes. Compliance lessens “the burden on the court and reduce[s] the
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unnecessary expenditure of resources by litigants, through the promotion of informal, extrajudicial
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resolution of discovery disputes.” Nevada Power v. Monsanto, 151 F.R.D. 118, 120 (D. Nev. 1993). The
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obligation “promote[s] a frank exchange between counsel to resolve issues by agreement or to at least
narrow and focus matters in controversy before judicial resolution is sought.” Id. In order to serve its

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purpose, parties must “treat the informal negotiation process as a substitute for, and not simply a formal

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prerequisite to, judicial review of discovery disputes.” Id. To do so,

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[t]he parties must present to each other the merits of their respective positions with the
same candor, specificity, and support during the informal negotiations as during the
briefing of discovery motions. Only after the cards have been laid on the table, and a
party has meaningfully assessed the relative strengths and weaknesses of its position in
light of all available information, can there be a “sincere effort” to resolve the matter.
Id. Schwartz’s motion appears ripe for resolution by meet and confer.
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ACCORDINGLY, and for good cause shown,

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IT IS ORDERED that Plaintiff’s motion to compel (#21) is DENIED WITHOUT PREJUDICE.

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IT IS SO ORDERED.

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DATED this 13th day of January, 2014.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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