Milburn et al v. Hudgens et al (TV3)

Filing 66

MEMORANDUM AND ORDER granting in part and denying in part 57 Motion to Compel; the Motion for Additional Time to Disclose Experts [Doc. 60] is hereby WITHDRAWN. Signed by Magistrate Judge H Bruce Guyton on 5/23/18. (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
CHRIS MILBURN and ANITA MILBURN,

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Plaintiffs,
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v.
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HUGH D. HUDGENS, SHORE TRUCKING, CO., )
AVERITT EXPRESS, INC., and DAVID
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WILLIAMS,
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Defendants.
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No. 3:17-CV-35-TAV-HBG

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
Now before the Court is Plaintiffs’ Motion to Compel Directed to Defendant Averitt
Express [Doc. 57] and Defendants Averitt Express, Inc., and David Williams’s Motion for
Additional Time to Disclose Experts and to Convene a Status Conference [Doc. 60]. The parties
appeared before the Court on May 21, 2018, for a motion hearing. Attorney James O’Brien was
present on behalf of Plaintiffs. Attorney Louis McElroy, II, was present on behalf of Defendants
Averitt Express, Inc., and David Williams. Attorney Benjamin Jones appeared on behalf of
Defendants Hugh Hudgens and Shore Trucking Company, Inc.1 Accordingly, the Court GRANTS
IN PART AND DENIES IN PART the Motion to Compel [Doc. 60]. Further, pursuant to the
representation of Defendants Averitt Express, Inc., and David Williams made at the hearing, the
Motion for Additional Time to Disclose Experts [Doc. 60] is hereby WITHDRAWN.

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CV-74.

The Court held the hearing in conjunction with a hearing in Swisher v. Williams, 3:17-

With respect to the Motion to Compel, Plaintiffs state that they served discovery requests
on Defendant Averitt Express, Inc., (“Averitt”), but the discovery requests remain outstanding.
Defendant Averitt did not file a response to the Motion. See E.D. Tenn. L.R. 7.1 (“Failure to
respond to a motion may be deemed a waiver of any opposition to the relief sought.”).
As an initial matter, the Court observes that Plaintiffs’ Motion is deficient in several ways.
First, pursuant to Federal Rule of Civil Procedure 37, a motion to compel “must include a
certification that the movant has in good faith conferred or attempted to confer with the person or
party failing to make disclosures or discovery in an effort to obtain it without court action.” Fed.
R. Civ. P. 37(a). Plaintiffs’ Motion states that following depositions and follow-up letters,
Defendant Averitt’s discovery responses remain deficient. This sentence does not meet the goodfaith certification required by the Rule. The Court reminds the parties that the good-faith
certification pursuant to Rule 37(a)(1) is not an “empty formality” and that the parties are required
to engage in meaningful attempts to resolve discovery disputes prior to filing such motions. Brady
v. LTD Parts, Inc., No. 2:08-0058, 2009 WL 2224172, at *1 (M.D. Tenn. July 22, 2009) (quoting
Ross v. Citifinancial, Inc., 203 F.R.D. 239, 240 (S.D. Miss. 2001)).
Second, the Court notes that Plaintiffs failed to comply with Section 3(j) of the Scheduling
Order [Doc. 33], which requires parties to take certain steps before filing motions regarding
discovery disputes.

First, the parties shall meet and confer in an attempt to resolve disputes

between themselves, without judicial intervention. Second, if the parties are unable to resolve the
disputes informally, they shall attempt to resolve their disagreement by conference with the
undersigned. Third, “[i]f, and only if, the parties’ dispute is unresolved following the conference
with the undersigned, the parties may file appropriate written motions with the Court.” 2
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The

The Court observes that this is not the first time that Plaintiffs have filed a motion to
compel without completing the required steps in the Scheduling Order. See [Doc. 27].
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purpose of Rule 37(a)(1) and the procedure in the Scheduling Order is to save, not only judicial
resources, but the parties’ resources because many discovery disputes can be resolved without
engaging in time consuming and expensive motion practice.

Plaintiffs are hereby

ADMONISHED that the failure to follow these Rules may warrant future motions involving
discovery disputes to be summarily denied.
Despite the above deficiencies, the Court addressed the Motion to Compel at the May 21
hearing because, as mentioned above, Defendant Averitt did not file an objection, let alone a
response to the Motion. See E.D. Tenn. L.R. 7.1 ( “Failure to respond to a motion may be deemed
a waiver of any opposition to the relief sought.”). During the hearing, Plaintiffs stated that
Defendant Averitt had produced additional documents but that the responses remain deficient with
respect to driver logs, hours of service, the specific truck Defendant Williams was driving,
communications between Defendants Williams and Averitt, and documents relating to the
investigation of the accident. Specifically, Plaintiffs explained that Request for Production Nos.
1, 7, 58, 70, and Corporate Designee Requests Nos. 2, 5, 20, and 27 remain deficient. Defendant
Averitt responded that some of the discovery that Plaintiffs seek does not exist and that information
relating to the investigation of the accident and root cause analysis has been provided. Further,
Defendant Averitt stated that Defendant Williams is no longer working for the company.
The Court ORDERS Defendant Averitt to respond to the outstanding discovery requests
(Request for Production Nos. 1, 7, 58, 70, and Corporate Designee Request Nos. 2, 5, 20, and 27)
within fourteen (14) days of entry of this Memorandum and Order. If the documents do not exist,
Defendant Averitt shall state so. If they have already been provided, Defendant Averitt shall
indicate the document that is responsive to the request. Accordingly, Plaintiffs’ Motion to Compel
[Doc. 57] is GRANTED IN PART AND DENIED IN PART.

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Finally, during the hearing, Defendants Averitt and Williams stated that they were
withdrawing their Motion for Additional Time to Disclose Experts [Doc. 60]. Accordingly, the
Motion for Additional Time to Disclose Experts [Doc. 60] is hereby WITHDRAWN.
IT IS SO ORDERED.
ENTER:

United States Magistrate Judge

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