Fisher v. Walmart

Filing 60

ORDER by Magistrate Judge Kevin R. Sweazea granting 33 Defendant's Motion to Compel Plaintiff's Initial Disclosures, HIPAA Releases, and Discovery Responses. Plaintiff shall produce his Initial Disclosures no later than close of business on March 20, 2025. Plaintiff shall also provide complete answers to Defendant's First Set of Interrogatories, Interrogatories Nos. 3, 6, 11, 20, 23, and 25 as well as Defendant's First Set of Request for Production, Request for Production Nos. 1, 2, and 6, no later than close of business on March 31, 2025. (efw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DANIEL B. FISHER,
Plaintiff,
v.

No. 1:23-cv-28 JB/KRS

WALMART, REGISTERED AGENT,
Defendant.
ORDER GRANTING MOTION TO COMPEL
THIS MATTER is before the Court on Defendant Walmart’s Motion to Compel Plaintiff’s
Initial Disclosures, HIPAA Releases, and Discovery Responses (“Motion to Compel”), (Doc. 33),
filed June 26, 2024. Defendant requests the Court compel Plaintiff to produce his Initial
Disclosures, HIPAA releases for Plaintiff’s purported medical providers, and complete responses
to Defendant’s First Set of Interrogatories and First Set of Requests for Production. Plaintiff’s
response to the Motion to Compel was due on July 10, 2024, but, to date, Plaintiff has not filed a
response or moved for an extension of his response deadline.
Under the Local Rules, “[t]he failure of a party to file and serve a response in opposition
to a motion within the time prescribed for doing so constitutes consent to grant the motion.”
D.N.M.LR-Civ. 7.1(b). Because Plaintiff failed to file a response within the allotted time under
the Rules, the Court deems Defendant’s Motion to Compel unopposed and will GRANT it.
The Court will not, however, grant Defendant the attorney fees and expenses it incurred in
filing the Motion to Compel. Federal Rule of Civil Procedure 37(a)(5)(A) requires that the Court
order the payment of attorney fees if it grants a motion to compel unless: 1) the movant filed the
motion before attempting in good faith to obtain the disclosure or discovery without court action;
2) the opposing party’s nondisclosure, response, or objection was substantially justified; or 3) other

circumstances make an award of expenses unjust. Here, Defendant’s opening requests fees and
costs incurred as permitted under Rule 37(a)(5)(A). Defendant, however, failed to raise the
argument in the body of the Motion to Compel. It would be unjust for this Court to award expenses
in this particular instance given Plaintiff’s pro se status without the moving party proffering any
argument in support thereto. The Court thus DENIES Defendant’s request for attorneys’ fees and
costs.
IT IS THEREFORE ORDERED that Defendant Walmart’s Motion to Compel Plaintiff’s
Initial Disclosures, HIPAA Releases, and Discovery Responses, (Doc. 33), is GRANTED.
Plaintiff shall produce his Initial Disclosures no later than close of business on March 20, 2025.
Plaintiff shall also provide complete answers to Defendant’s First Set of Interrogatories,
Interrogatories Nos. 3, 6, 11, 20, 23, and 25 as well as Defendant’s First Set of Request for
Production, Request for Production Nos. 1, 2, and 6, no later than close of business on March
31, 2025.
IT IS SO ORDERED.

______________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE

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