i play, Inc. v. D. Catton Enterprise, LLC

Filing 30

ORDER granting 26 Motion to Compel Defendant's Responses to Jurisdictional Discovery by i play, Inc. Signed by District Judge Martin Reidinger on 11/7/12. (nll)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:12cv22

i play, Inc.,

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Plaintiff,
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vs.
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)
D. CATTON ENTERPRISE, LLC,
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)
Defendant.
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_______________________________ )

ORDER

THIS MATTER is before the Court on the Plaintiff’s Motion to Compel
Defendant’s Discovery Responses [Doc. 26].
I.

PROCEDURAL BACKGROUND
The Plaintiff filed this patent infringement case on February 3, 2012.

[Doc. 1].

On July 9, 2012, the Defendant filed a motion to dismiss the

Complaint on the grounds that this Court lacks personal jurisdiction over the
Defendant. [Doc. 14]. In response to the Defendant’s motion, the Plaintiff
filed a motion seeking leave to take early discovery on the jurisdictional issue
and seeking an extension of time to respond to the Defendant’s motion to
dismiss. [Doc. 16]. The Court granted the Plaintiff’s request for expedited
discovery on August 28, 2012, imposing the following deadlines on the
parties:

(1) Defendant shall respond to the Plaintiff’s
Interrogatories and Requests for Production of
Documents [Doc. 16-1] within thirty (30) days of
service thereof;
(2) Any depositions related to the personal jurisdiction
issue shall be taken within thirty (30) days from
Plaintiff’s receipt of the Defendant’s discovery
responses; and
(3) Plaintiff shall have forty-five (45) days from receipt
of the Defendant’s discovery responses to respond to
the Defendant’s Motion to Dismiss [Doc. 15].
[Doc. 21 at 4].
The Plaintiff served its Interrogatories and Requests for Production of
Documents on August 29, 2012. On October 2, 2012, the Court granted the
Defendant’s Motion for an Extension of Time to respond to the discovery up
to October 15, 2012. [Doc. 23]. On October 5, 2012, the Defendant served
verified responses to the discovery but did not produce any documents
responsive to the requests. In response to the Defendant’s objections and
confidentiality concerns, on October 9, 2012, counsel for the Plaintiff drafted
and proposed a Consent Protective Order, which was agreed to by the parties
and entered by the Court on October 15, 2012. [Doc. 25]. Also on October
9, 2012, counsel for the Plaintiff sent counsel for the Defendant a good faith
letter in an attempt to resolve the remaining discovery disputes.
Defendant, however, has not supplemented its discovery responses.

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The

The Plaintiff now moves the Court to compel the Defendant to respond
to the Plaintiff’s Request for Production of Documents and to provide full and
complete responses to the Plaintiff’s Interrogatories. Additionally, the Plaintiff
moves for an award of its expenses, including attorneys’ fees, incurred in
making this motion. [Doc. 26].
The Defendant’s Response to the Plaintiff’s Motion to Compel was due
on November 5, 2012. On October 29, 2012, the Defendant filed a motion
requesting an additional thirty (30) days, through and including November 28,
2012, to respond to the Plaintiff’s Motion to Compel and to produce the
requested discovery. [Doc. 28]. The Court denied the Defendant’s Motion by
a text order entered November 2, 2012. The Defendant did not respond to the
Plaintiff’s Motion to Compel by the November 5, 2012 deadline. This motion,
therefore, is ripe for disposition.
II.

ANALYSIS
As a general rule, parties in a civil action “may obtain discovery

regarding any nonprivileged matter that is relevant to any party’s claim or
defense....” Fed. R. Civ. P. 26(b)(1).

“Relevant information need not be

admissible at the trial if the discovery appears reasonably calculated to lead
to the discovery of admissible evidence.” Id.

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Where a party fails to respond to an interrogatory or a request for
production of documents, the party seeking discovery may move for an order
compelling an answer to the interrogatory or the production of documents
responsive to the request. Fed. R. Civ. P. 37(a)(3)(B). “Over the course of
more than four decades, district judges and magistrate judges in the Fourth
Circuit ... have repeatedly ruled that the party or person resisting discovery,
not the party moving to compel discovery, bears the burden of persuasion.”
Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 243 (M.D.N.C. 2010)
(collecting cases); Gainey v. Alliance One, No. 1:11cv279, 2012 WL 3262428,
at *1 (W.D.N.C. Aug. 9, 2012) (Howell, Mag. J.).
Upon review of the Plaintiff’s Motion, and in light of the lack of response
by the Defendant, the Court will grant the Plaintiff’s Motion to Compel. The
Defendant will be required to respond to the Plaintiff’s Request for Production
of Documents and to provide full and complete responses to the Plaintiff’s
Interrogatories within twenty-one (21) days of the entry of this Order. Only
once the Defendant has provided full and complete responses to the Plaintiff’s
written discovery will the 30- and 45-day deadlines set forth in paragraphs 2
and 3 of the Court’s August 28, 2012 Order be triggered.
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion to Compel
Defendant’s Discovery Responses [Doc. 26] is GRANTED. The Defendant

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shall respond to the Plaintiff’s Request for Production of Documents and
provide full and complete responses to the Plaintiff’s Interrogatories within
twenty-one (21) days of the entry of this Order. Only once the Defendant has
provided full and complete responses to the Plaintiff’s written discovery will
the 30- and 45-day deadlines set forth in paragraphs 2 and 3 of the Court’s
August 28, 2012 Order be triggered.
IT IS FURTHER ORDERED that the Plaintiff’s request for an award of
fees and expenses is HELD IN ABEYANCE pending further Order of this
Court.
IT IS SO ORDERED.
Signed: November 7, 2012

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