White et al v. City of Chattanooga et al (JRG1)
ORDER granting in part and denying in part 24 Motion to Compel. It is ORDERED that Plaintiffs SHALL fully respond to Defendants interrogatories and requests for production of documents within 14 days of this Order. It is further ORDERED that Plaintiffs SHALL pay Defendants the reasonable attorneys fees and any expenses incurred in filing the motion to compel and supporting memorandum. Signed by Magistrate Judge Susan K Lee on 5/8/2017. (BDG, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
CHARLES WHITE, et al.,
CITY OF CHATTANOOGA, et al.,
Before the Court is Defendants’ motion to compel discovery and a supporting
memorandum [Docs. 24 & 25].
Defendants seek dismissal pursuant to Federal Rules of Civil
Procedure 37(b)(2)(A)(v) and (d)(3), due to Plaintiffs’ failure to answer Defendants’ requests for
interrogatories and production of documents. Alternatively, Defendants ask the Court to compel
Plaintiffs, pursuant to Rule 37(a), to fully and completely respond to the certain discovery
requests filed by Defendants—namely, the First Requests for Production to Charles White,
served June 24, 2016 [Doc. 24-1]; First Set of Interrogatories to Charles White, served March 9,
2017 [Doc. 24-2]; First Set of Interrogatories to Tami Boring White, served March 9, 2017 [Doc.
24-3]; First Set of Interrogatories to Heath Brandon Lee White, served March 9, 2017 [Doc. 244]; Second Request for Production of Documents to Plaintiff Charles White, served March 9,
2017 [Doc. 24-5]; First Request for Production of Documents to Plaintiff Tami Boring White,
served March 9, 2017 [Doc. 24-6]; and First Request for Production of Documents to Plaintiff
Heath Brandon Lee White, served March 9, 2017 [Doc. 24-7]. Defendants also request an award
of reasonable attorney’s fees and expenses incurred in filing the motion.1
Plaintiffs filed a belated response to Defendants’ motion on May 4, 2017.2 Plaintiffs
admitted the facts and timeline set forth in Defendants’ motion, but argue dismissal is not
warranted as a sanction in this case at this time. Plaintiffs provide no explanation whatsoever for
their complete failure to properly participate in discovery.
Pursuant to Fed. R. Civ. P. 37(d)(3), where a party fails to respond to written discovery
requests, instead of or in addition to other types of sanctions, a court must require “the party
failing to act, 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.” An award of sanctions is proper in this case
and Plaintiffs have provided no justification for their failure to respond to discovery or presented
other circumstances that would make an award of fees and expenses unjust.
Defendants’ motion to compel [Doc. 24] is GRANTED IN PART AND DENIED IN
PART as the Court declines to dismiss the action at this time and Plaintiffs will be given another
chance to appropriately participate in discovery. Accordingly, it is ORDERED that Plaintiffs
SHALL fully respond to Defendants’ interrogatories and requests for production of documents
within 14 days of this Order.
Defendants certified that pursuant to Rule 37(a)(1) they attempted to confer in good faith with
Plaintiffs prior to filing their motion [Doc. 24-8].
The motion was filed April 18 and the response was due May 2, but the response was not filed
until May 4, 2017. Plaintiffs’ counsel may have been operating under the mistaken belief that he
could add three days for service in calculating the time to respond. As noted in the comments to
the recent amendment to Federal Rule of Civil Procedure 6 effective December 1, 2016,
however, “Rule 6(d) is amended to remove service by electronic means under Rule 5(b)(2)(E)
from the modes of service that allow 3 added days to act after being served.” While E.D. Tenn.
L.R. 7.2 provides that “[f]ailure to respond to a motion may be deemed a waiver of any
opposition to the relief sought[,]” it is not necessary to deem a waiver under the circumstances.
In addition, the Court FINDS Defendants’ request for sanctions against Plaintiffs in the
amount of the reasonable attorneys’ fees and expenses Defendants incurred to file the motion to
compel and supporting memorandum is justified. Accordingly, it is further ORDERED that
Plaintiffs SHALL pay Defendants the reasonable attorneys’ fees and any expenses incurred in
filing the motion to compel and supporting memorandum. As Defendants did not provide any
information as to the amount of fees requested, such as the hours worked or the hourly rate of the
fees sought, the Court FINDS that $750.00 is a reasonable fee under the circumstances and
ORDERS Plaintiffs to remit $750.00 to Defendants within 14 days of this Order.
Any failure by Plaintiffs to fully comply with this order may result in the imposition
of sanctions up to and including the dismissal of this case.
s/fâátÇ ^A _xx
SUSAN K. LEE
UNITED STATES MAGISTRATE JUDGE
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