Relyea v. Quilite International, LLC et al

Filing 48

FINDINGS & RECOMMENDATION: Plaintiff's motion to compel the production of documents (# 41 -1) is GRANTED. Plaintiff's request to recover the costs of obtaining this Order (# 41 -2) should be GRANTED, and an order should be entered requiring defendant Quilite to pay plaintiff Relyea expenses in the amount of $690. The above Findings and Recommendation are referred to a United States District Judge for review. Objections, if any, are due May 28, 2009. If no obje ctions are filed, review of the Findings and Recommendation will go under advisement on that date. A party may respond to another party's objections within 10 days after service of a copy of the objection. If objections are filed, review of the Findings and Recommendation will go under advisement upon receipt of the response, or the latest date for filing a response. Signed on May 12, 2009 by Magistrate Judge John Jelderks. (eo)

IN T H E UNITED STATES DISTRICT C O U R T F O R T H E DISTRICT OF OREGON

) Civil N o . 0 7 - 8 7 8 - J E ) Plaintiff, ) FINDINGS A N D ) RECOMMENDATION/ v. ) ORDER ) QUILITE I N T E R N A T I O N A L , LLC, ) a California LLC, and RICHARD ) K O T T E R , personal representative ) o f the Estate o f R o d m a n Kotter, ) et aI, ) ) Defendants. ) ) ) QUILITE INTERNATIONAL, LLC, ) a C a l i f o r n i a LLC, ) ) C o u n t e r Claimant, ) ) v. ) ) WILLIAM S. RELYEA, ) ) C o u n t e r Defendant. ) ) F I N D I N G S AND R E C O M M E N D A T I O N / O R D E R - 1

WILLIAM S. RELYEA,

David P. S m i t h Mead Smith P C 1672 W i l l a m e t t e F a l l s D r i v e . S u i t e D W e s t Linn, O R 9 7 0 6 8 A t t o r n e y s for P l a i n t i f f l C o u n t e r D e f e n d a n t W i l l i a m L. G h i o r s o 6 8 7 C o u r t Street, N.E. S a l e m , O R 97301 A t t o r n e y for Defendant/Counter C l a i m a n t Quilite Richard K o t t e r c/o L a w O f f i c e o f Daniel K. P r i n t z 5631 P a l m e r Way, S u i t e C Carlsbad, C A 9 2 0 1 0 Defendant Pro S e J E L D E R K S , M a g i s t r a t e Judge: P l a i n t i f f W i l l i a m R e l y e a b r i n g s this a c t i o n a l l e g i n g b r e a c h o f c o n t r a c t a g a i n s t d e f e n d a n t s Q u i l i t e I n t e r n a t i o n a l , LLC ( Q u i l i t e ) ; R i c h a r d K o t t e r , p e r s o n a l r e p r e s e n t a t i v e o f the estate o f R o d m a n Kotter, a n d 10 d o e defendants. P l a i n t i f f n o w m o v e s to compel the p r o d u c t i o n o f d o c u m e n t s from d e f e n d a n t Quilite, a n d seeks recovery o f the attorney fees i n c u r r e d i n b r i n g i n g t h e m o t i o n . I g r a n t t h e m o t i o n to c o m p e l , a n d r e c o m m e n d g r a n t i n g t h e r e q u e s t t o r e c o v e r a t t o r n e y fees.

Discussion 1. Motion to C o m p e l P r o d u c t i o n o f D o c u m e n t s P l a i n t i f f filed t h i s action o n J u n e 13, 2007. After significant delays caused by difficulties in s e r v i n g d e f e n d a n t s a n d litigation o f motions to d i s m i s s for lack o f jurisdiction, the court entered a s c h e d u l i n g o r d e r o n N o v e m b e r 6, 2008. T h a t O r d e r p r o v i d e d that discovery w o u l d c l o s e o n M a r c h 1 3 , 2 0 0 9 . FINDINGS A N D R E C O M M E N D A T I O N / O R D E R - 2

According to the unrebutted declaration o f David Smith, p l a i n t i f f s attorney, a Request for Production o f Documents was served o n defendant QuiJite on November 12, 2008. Smith states that, having received no response to that request, on December 2 9 , 2 0 0 8 , he mailed a letter to defendant Quilite's attorney stating that plaintiff would move to compel production o f the requested material i f Quilite did not respond by January 5, 2008. Defendant Quilite has not responded to p l a i n t i f f s Request for Production o f Documents, responded to plaintiff's counsel's correspondence concerning the request, or responded to the pending motion to compel production o f documents. In the absence o f any argument that plaintiff is not entitled to the requested documents, or that their production would be unduly onerous, I grant the motion to compel.

2. Request to Recover Costs o f Bringing Motion to Compel After allowing the party whose conduct has necessitated the filing o f a motion to compel an opportunity to be heard, a court granting a motion to compel ordinarily must award the moving party the costs, including attorney fees, reasonably incurred in bringing the motion. Fed. R. Civ. P. 37(a)(5). These costs are not awarded if: I ) the moving party sought to compel discovery before attempting in good faith to obtain it without the court's assistance; 2) the nondisclosure was substantially justified; or 3) i f other circumstances make an award o f expenses unjust. Id. Defendant Quilite has had an opportunity to be heard, and none o f the exceptions set out in Rule 37(a)(5) apply. Therefore, p l a i n t i f f is entitled to recover the cost o f obtaining the order compelling defendant Quilite's production o f the documents requested.

FINDINGS A N D R E C O M M E N D A T I O N / O R D E R - 3

Plaintiff's counsel has submitted an unrebutted declaration stating that he has devoted approximately three hours to obtaining the court's order compelling discovery, and that his billing rate is $230 p e r hour. The amount o f time devoted to this task and the hourly rate both appear reasonable, and p l a i n t i f f should be awarded expenses in the amount o f $690.

Conclusion Plaintiff's motion to compel the production o f documents (# 41-1) is GRANTED. Plaintiff's request to recover the costs o f obtaining this Order (# 41-2) should be GRANTED, and an order should be entered requiring defendant Quilite to pay p l a i n t i f f Relyea expenses in the a m o u n t o f $ 6 9 0 .

Scheduling Order The above Findings and Recommendation are referred to a United States District Judge for review. Objections, i f any, are due May 28, 2009. I f no objections are filed, review o f the Findings and Recommendation will go under advisement o n that date. A party may respond to another party's objections within 10 days after service o f a copy o f the objection. I f objections are filed, review o f the Findings and Recommendation will go under advisement upon receipt o f the response, o r the latest date for filing a response. DATED this 12th day o f May, 2009.

U.S. M a g i s t r a t e J u d g e

JOM~~-

FINDINGS A N D R E C O M M E N D A T I O N I O R D E R - 4