Woodward et al v. Energy Curtailment Specialists et al

Filing 43

ORDER granting 24 Motion to Compel. Signed by Hon. H. Kenneth Schroeder, Jr on 10/3/2013. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SEAN M. WOODWARD, et al.,
Plaintiffs,

12-CV-0373A(Sr)

v.
ENERGY CURTAILMENT SPECIALISTS, et al.,
Defendants.

DECISION AND ORDER
This case was referred to the undersigned by the Hon. Richard J. Arcara,
pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon
dispositive motions. Dkt. #9.

Plaintiffs commenced this action alleging discrimination on the basis of
race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(“Title VII”), and the New York State Human Rights Law, N.Y. Exec. Law § 296
(“NYSHRL”). Dkt. #1.

Currently before the Court is defendants’ motion to compel plaintiffs’
responses to discovery demands; award defendants attorneys’ fees for the costs of this
motion; and extend the case management order to permit defendants to depose
plaintiffs. Dkt. #24. In support of the motion, defendants’ counsel declares that he
served a first set of interrogatories and first request for production of documents upon
plaintiffs on November 16, 2012, requested responses by letters dated January 24,

2013 and February 20, 2013 and advised plaintiffs’ counsel by letter dated March 7,
2013 that defendants intended file a motion to compel if responses were not received
by March 15, 2013, but had yet to receive discovery responses as of the filing of this
motion on March 18, 2013. Dkt. #24.

In response, plaintiffs’ counsel declares that she “was in the midst of
preparing and planning to serve full and complete discovery responses” when
defendants’ counsel filed his motion to compel. Dkt. #29. Plaintiffs’ responses were
served on April 15, 2013. Dkt. #29. . Dkt. #29. Plaintiffs’ counsel notes that she
communicated her interest in resolving this matter by settlement while discovery
demands were pending and complains that defendants’ counsel never indicated that
discovery responses were necessary to evaluate the prospect of settlement. Dkt. #29.

In reply, defendants’ counsel declares that regardless of plaintiffs’ interest
in pursuing settlement, he clearly indicated his intention to file a motion to compel
unless discovery responses were received March 15, 2013, which was four months
after discovery demands had been served. Dkt. #34. Defendants’ counsel also
declares that plaintiffs’ discovery demands are deficient and requests an opportunity to
resolve the deficiencies with plaintiffs’ counsel before seeking further Court review. Dkt.
#34.

Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure provides, in
relevant part, as follows:

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If the motion [to compel disclosure or discovery] is granted –
or if the disclosure or requested discovery is provided after
the motion was filed – the court must, after giving an
opportunity to be heard, require the party or deponent whose
conduct necessitated the motion, the party or attorney
advising that conduct, or both of them to pay the movant’s
reasonable expenses incurred in making the motion,
including attorney’s fees. But, the court must not order this
payment if:
(I)

the movant filed the motion before attempting
in good faith to obtain the disclosure or
discovery without court action;

(ii)

the opposing party’s nondisclosure, response,
or objection was substantially justified; or

(iii)

other circumstances make an award of
expenses unjust.

As defendants’ counsel filed this motion after good faith attempts to obtain responses to
his discovery demands over the course of several months and as plaintiffs’ counsel has
failed to demonstrate substantial justification for her failure to provide timely responses
to defendants’ discovery demands, the Court finds an award of attorneys’ fees is
appropriate. If the parties are unable to agree to the amount of reasonable expenses
incurred in the making of this motion, defendants’ counsel shall submit an affirmation
setting forth such costs no later than November 8, 2013.

SO ORDERED.

DATED:

Buffalo, New York
October 3, 2013
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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