Walker et al v. North Las Vegas Police Department et al

Filing 58

ORDER Denying 48 Motion to Compel. Signed by Magistrate Judge Nancy J. Koppe on 2/3/16. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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THOMAS WALKER, et al.,
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Plaintiff(s),
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vs.
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NORTH LAS VEGAS POLICE DEPARTMENT
et al.,
Defendant(s).

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Case No. 2:14-cv-01475-JAD-NJK
ORDER DENYING MOTION TO
COMPEL WITHOUT PREJUDICE
(Docket No. 48)

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Pending before the Court is Plaintiffs’ motion to compel. Docket No. 48. Defendants filed a
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response, and Plaintiffs submitted a reply. Docket Nos. 52, 57. The Court finds this matter is properly
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resolved without oral argument. See Local Rule 78-2. For the reasons discussed more fully below, the
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motion is hereby DENIED without prejudice.
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I.

BACKGROUND

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Plaintiffs allege that on September 14, 2012, Defendants executed a narcotics search warrant on
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their home. Docket No. 3 at 3-4. In the process, Defendants Snyder and Maalouf allegedly shot and
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killed Plaintiffs’ two dogs. Id., at 4-5.
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Filed on September 12, 2014, Plaintiffs’ Amended Complaint alleges claims under 42 U.S.C.
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§ 1983 against Defendants Snyder and Maalouf and a policy-or-practice claim against Defendant
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NLVPD under Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978),
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contending that Defendant NLVPD has a practice of using unreasonable force on dogs during the
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execution of search warrants. Docket No. 48 at 3. Plaintiffs’ Amended Complaint also seeks a

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permanent injunction preventing Defendant NLVPD from shooting pet dogs while executing search

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warrants absent exigent circumstances. Id.

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The discovery dispute presently before the Court arises from a request for production served by

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Plaintiffs on September 23, 2015. Docket No. 48 at 15. After having received an extension, Defendants

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responded and objected to the requests at issue on November 9, 2015.1 Id.

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The parties exchanged letters detailing their positions and conferred telephonically. Id. During

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the meet-and-confer process, Plaintiffs contended that the requested documents were discoverable

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because they were relevant to the “injunctive relief sought.” Id. In response, Defendants moved to

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dismiss Plaintiffs’ prayer for injunctive relief on November 24, 2015. Docket No. 42.

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On December 8, 2015, the Court granted a separate motion to compel filed by Plaintiffs. Docket

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No. 46. In light of the Court’s ruling, on December 17, 2015, Defendants filed a supplemental response

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to Plaintiffs’ request for production, adding additional bases of objection and requesting an additional

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meet and confer. Docket No. 52 at 4-5. On December 18, 2015, the parties again conferred, but

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Plaintiffs refused to discuss the substance of Defendants’ newly raised objections. Id. at 5. That same

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day, Plaintiffs filed another motion to compel. Docket No. 48.

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As that motion was being briefed, on January 21, 2016, United States District Judge Jennifer A.

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Dorsey granted Defendants’ motion to dismiss Plaintiffs’ prayer for injunctive relief, construing it as

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a motion to strike under Federal Rule of Civil Procedure 12(f). See Docket No. 56.

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II.

STANDARD

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A threshold issue in the review of any motion to compel is whether the movant made adequate

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efforts to resolve the dispute without court intervention. Cardoza v. Bloomin’ Brands, Inc., ___ F. Supp.

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3d ____, 2015 WL 6123192, *6 (D.Nev. Oct. 16, 2015). Federal Rule of Civil Procedure 37(a)(1)

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requires that the party bringing a motion to compel discovery must “include a certification that the

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movant has in good faith conferred or attempted to confer with the person or party failing to make

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disclosure or discovery in an effort to obtain it without court action.” Similarly, Local Rule 26-7(b)

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The requests at issue are Requests for Production Nos. 25-30, 39-43. Docket No. 48 at 6-13.
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provides that “[d]iscovery motions will not be considered unless a statement of the movant is attached

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thereto certifying that, after personal consultation and sincere effort to do so, the parties have not been

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able to resolve the matter without Court action.”

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Courts in the District of Nevada take the meet and confer requirement seriously and routinely

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hold that “personal consultation” means the movant must “personally engage in two-way

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communication with the nonresponding party to meaningfully discuss each contested discovery dispute

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in a genuine effort to avoid judicial intervention.” ShuffleMaster, Inc. v. Progressive Games, Inc., 170

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F.R.D. 166, 171 (D.Nev. 1996). The consultation obligation “promote[s] a frank exchange between

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counsel to resolve issues by agreement or to at least narrow and focus matters in controversy before

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judicial resolution is sought.” Nevada Power v. Monsanto, 151 F.R.D. 118, 120 (D.Nev. 1993). To meet

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

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a formalistic prerequisite to, judicial resolution of discovery disputes.” Id. This is done when the

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parties “present to each other the merits of their respective positions with the same candor, specificity,

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and support during the informal negotiations as during the briefing of discovery motions.” Id. To

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ensure that parties comply with these requirements, movants must file certifications that “accurately and

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specifically convey to the court who, where, how, and when the respective parties attempted to

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personally resolve the discovery dispute.” ShuffleMaster, 170 F.R.D. at 170.

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III.

ANALYSIS

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In this case, Plaintiffs’ counsel provided a certification that a good faith meet-and-confer had

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been conducted. Docket No. 50-1 at 1. What the certification and the exhibits attached to Plaintiffs’

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motion make clear, however, is that the meet-and-confer process proceeded under a cloud of legal

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uncertainty regarding Plaintiffs’ prayer for injunctive relief. In conferring with Defendants, Plaintiffs’

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counsel argued that the disputed information was relevant to “the injunctive relief sought.” Docket No.

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50-3 at 3. Defendants’ counsel responded by moving to dismiss Plaintiffs’ request for injunctive relief

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and replying that Defendants did “not feel [Plaintiffs] properly plead such a cause of action[.]” Docket

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No. 50-4 at 3. This uncertainty extended into the briefing of Plaintiffs’ motion to compel, wherein

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Plaintiffs justify the discovery sought, at least in part, on the basis that they are “are relevant to

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Plaintiffs’ requested injunctive relief.” Docket No. 48 at 6.
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The Court finds that the intervening ruling on Defendants’ motion to dismiss rendered the

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parties’ meet-and-confer efforts inadequate. The relevancy of the discovery sought depended in large

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part on Plaintiffs’ prayer for injunctive relief. Since Plaintiffs’ request for injunctive relief has been

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stricken, the grounds underlying each party’s discovery position has shifted. The parties’ prior

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discussions of each contested discovery issue are therefore insufficient to encompass “the merits of their

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respective positions[.]” Nevada Power, 151 F.R.D. at 120. Accordingly, the Court finds that the parties

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failed to “meaningfully discuss” the issues presented in Plaintiffs’ motion to compel. ShuffleMaster,

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Inc., 170 F.R.D. 166, 171 (D.Nev. 1996).

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For the first time in reply, Plaintiffs attempt to salvage their motion by downplaying the impact

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of the Court’s ruling on their request for a permanent injunction. Docket No. 57 at 3. They contend that

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the Court “made clear at the hearing that Plaintiffs could file a motion to amend [sic], which Plaintiffs

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intend to do.” Id. However, this argument does not address, much less establish, the adequacy of

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parties’ prior meet-and-confer efforts in light of Judge Dorsey’s ruling.

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Accordingly, the Court DENIES Plaintiffs’ motion to compel without prejudice.

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IT IS SO ORDERED.

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DATED: February 3, 2016

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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