DUFALA v. PRIMANTI BROTHERS et al

Filing 22

MEMORANDUM ORDER denying Plaintiff's 18 Motion to Compel Discovery. Signed by Judge Terrence F. McVerry on 09/30/15. (mcp)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LUCY DUFALA,
Plaintiff,
v.
PRIMANTI BROTHERS and PRIMANTI
BROS. RESTAURANT CORPORATION,
Defendants.

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MEMORANDUM ORDER
Pending before the Court is a MOTION TO COMPEL DISCOVERY (ECF No. 18) filed
by Plaintiff Lucy Dufala with a brief in support (ECF No. 19).1 Defendants Primanti Brothers
and Primanti Bros. Restaurant Corporation filed a brief in opposition (ECF No. 21). The motion
is ripe for disposition.
On July 31, 2015, Plaintiff served Defendants with Interrogatories and Requests for
Production of Documents. Defendants did not serve its responses within thirty days – i.e., on or
before August 31, 2015 – in accordance with the Federal Rules of Civil Procedure.
On September 22, 2015, Plaintiff filed a motion to compel in which she seeks those
discovery responses and requests that the Court order, as a sanction, that any objection(s) by
Defendants to said discovery requests are waived. For the reasons that follow, the motion will be
denied in its entirety.
As an initial matter, the motion to compel is moot insofar as Defendants served Plaintiff
with their responses to her discovery requests on September 25, 2015 and September 28, 2015.

1. Plaintiff did not “include a certification that [she] had in good faith conferred or attempted to confer with the
person or party failing to make disclosure or discovery in an effort to obtain it without court action,” as required by
Federal Rule of Civil Procedure 37.

Accordingly, the Court will not “enter an Order directing Defendants to make prompt and full
disclosure.”
Nor will the Court impose sanctions in this case. The ultimate decision to impose
sanctions under Rule 37 and any determination as to what sanctions are appropriate are matters
entrusted to the discretion of the district court. Bowers v. Nat’l Collegiate Athletic Ass’n, 475
F.3d 524, 538 (3d Cir. 2007) (citation omitted). Certain basic principles, however, guide the
exercise of this discretion. See Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir.
1984). The Court must consider and balance:
(1) the extent of the party’s personal responsibility; (2) the prejudice to the
adversary; (3) a history of dilatoriness; (4) whether the conduct of the party was
willful or in bad faith; (5) the effectiveness of sanctions other than dismissal,
which entails an analysis of alternative sanctions; and (6) the meritoriousness of
the claim or defense.
Karpiel v. Ogg, Cordes, Murphy & Ignelzi, L.L.P., The Firm, 405 F. App’x 592, 595 (3d Cir.
2010) (quoting Poulis, 747 F.2d at 868) (emphasis omitted).
In this instance, these factors do not weigh in favor of sanctions. Counsel for Defendants
contacted opposing counsel when he threatened to file a motion to compel and explained that the
reason for the delay was due to the vacation schedule of Defendants’ representative tasked with
facilitating the search for documents, the need to engage in electronic discovery, and a personal
emergency involving the hospitalization of a family member.

Those representations alone

should have obviated the need for a motion to compel. Be that as it may, Plaintiff has shown no
prejudice in not having received the documents for weeks past the formal deadline – she has (and
will) have ample time to review the discovery responses before the deadline for filing an
Amended Complaint and prior to the upcoming mediation scheduled on October 16, 20125.

2

Defendants (and their counsel) also have no history of dilatoriness, and their conduct was neither
willful or in bad faith. Accordingly, the motion to compel and for sanctions is DENIED.
SO ORDERED, this 30th day of September, 2015.
BY THE COURT:
s/Terrence F. McVerry
Senior United States District Judge
cc:

Gregory G. Paul, Esquire
Email: [e-mail]
Albert S. Lee, Esquire
Email: [e-mail]
Katherine E. Koop, Esquire
Email: [e-mail]
Lauren N. Woleslagle, Esquire
Email: [e-mail]

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