Commerce and Industry Insurance Company v. HR Staffing, Inc.
Filing
28
OPINION & ORDER: Plaintiff's Motion for Sanctions 26 is GRANTED. Defendant is ordered to pay $2,010 to Plaintiff for reasonable attorneys fees. See 4-page opinion & order attached. Signed on 5/7/2015 by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
COMMERCE AND INDUSTRY
INSURANCE COMPANY,
No. 3:14-cv-00559-HZ
Plaintiff,
OPINION & ORDER
v.
HR STAFFING, INC.,
Defendant.
Courtney A. Hasselberg
SHOOK, HARDY & BACON, LLP
5 Park Plaza, Suite 1600
Irvine, CA 92614
Ashley N. Schawang
SHOOK, HARDY & BACON, LLP
2555 Grand Boulevard
Kansas City, MO 64108
Britta E. Warren
BLACK HELTERLINE, LLP
1900 Fox Tower
805 SW Broadway
Portland, OR 97205
Attorneys for Plaintiff
1 – OPINION & ORDER
Robert A. Kerr
KERR LAW OFFICE P.C.
1001 Molalla Avenue, Suite 208
Oregon City, OR 97045
Attorney for Defendant
HERNÁNDEZ, District Judge:
Plaintiff Commerce and Industry Insurance Company brings this Motion for Sanctions,
contending that Defendant HR Staffing, Inc. has failed to comply with this Court’s November 5,
2014 Order, [21], and has repeatedly failed to respond to Plaintiff’s First Requests for
Production. Plaintiff asks the Court to order Defendant to pay Plaintiff $2,010 in attorney’s fees.
The Court grants Plaintiff’s motion and finds Plaintiff’s fee request reasonable; therefore, the
Court orders Defendant to pay Plaintiff $2,010 for Plaintiff’s efforts to obtain Defendant’s
compliance with this Court’s Order.
Federal Rule of Civil Procedure 37(b)(2) provides that a party who “fails to obey an order
to provide or permit discovery” may be sanctioned. Permissible sanctions may include any of the
orders listed in Rule 37(b)(2)(A)(i)-(vii). Alternatively, or additionally, “the court must order the
disobedient party, the attorney advising that party, or both to pay the reasonable expenses,
including attorney’s fees, caused by the failure, unless the failure was substantially justified or
other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(c).
On September 23, 2014, Plaintiff filed a Motion to Compel Discovery Responses, [16].
Plaintiff asked the Court to order Defendant to produce documents sought in Plaintiff’s First
Requests for Production of Documents, which was served upon Defendant on May 19, 2014.
Defendant objected to the Motion to Compel for two reasons: (1) several of the document
requests went beyond the scope of discovery by not being reasonably limited to any party’s
claims or defenses; and (2) a large portion of the documents requested by Plaintiff were outside
2 – OPINION & ORDER
of Defendant’s possession, custody, or control, and would be unduly burdensome and expensive
to obtain. Def.’s Resp. Mot. Compel at 1-2, [18]. In particular, Defendant asserted that a software
provider, ThinkWare, Inc., had the information Plaintiff sought and had refused to provide
Defendant with access to the information unless Defendant paid $9,000. Id. at 2.
The Court conducted a hearing on Plaintiff’s Motion to Compel on November 5, 2014.
Plaintiff’s motion was granted as stated on the record and Defendant was ordered to respond to
discovery requests within 14 days and serve a subpoena on ThinkWare, Inc., for the records that
had been otherwise unavailable. See Order, November 5, 2014, [21].
Plaintiff’s counsel corresponded via email with Defendant’s counsel ten times from the
November 5, 2014, Motion to Compel hearing until the present motion was filed on March 31,
2015. Hasselberg Decl. ¶¶ 3-4. In addition, Defendant’s counsel failed to return numerous
telephone calls. Id. at ¶ 3. While Defendant’s counsel promised Plaintiff’s counsel that discovery
responses and additional documents were forthcoming, Defendant has not provided written
responses to Plaintiff’s First Requests for Production and has only produced some documents
that are responsive to Plaintiff’s requests. Id. at ¶ 5.
In addition, Plaintiff’s counsel declares that on March 30, 2015, Defendant’s counsel sent
an email stating that a subpoena had been issued. Hasselberg Decl. ¶ 4. Plaintiff has not received
a copy of the subpoena. Id. Because Defendant did not respond to this Motion for Sanctions, the
Court is unable to determine whether the subpoena has been served. However, even if it were
served on March 30, 2015, that would constitute an unreasonable delay from this Court’s
November 5, 2014 Order to serve the subpoena.
Plaintiff asks the Court to sanction Defendant for its failure to respond to Plaintiff’s First
Requests for Production and its failure to comply with this Court’s November 5, 2014 Order.
3 – OPINION & ORDER
Defendant offers no response. The Court finds no substantial justification for Defendant’s failure
to comply with this Court’s Order and Plaintiff’s discovery requests.
CONCLUSION
Plaintiff’s Motion for Sanctions [26] is GRANTED. Defendant is ordered to pay $2,010
to Plaintiff for reasonable attorney’s fees.
IT IS SO ORDERED.
May
Dated this ___________ day of ________________, 2015.
7
MARCO A. HERNÁNDEZ
United States District Judge
4 – OPINION & ORDER
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