Nill v. Property Management Pros.Com Licensing LLC et al

Filing 46

ORDER: Plaintiff's motion for sanctions 40 is DENIED, as provided herein. Signed by Magistrate Judge Juliet E. Griffin on 7/19/13. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JULIE ANN NILL,
Plaintiff/Counter-Defendant1
v.
PROPERTY MANAGEMENT
PROS.COM LICENSING LLC; GCB
PROPERTIES III, LTD.; GREGORY
R. BABBIT; and SEAN HINELY,
Defendants/Counter-Plaintiffs2

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No. 3-12-0583

ORDER
The plaintiff's motion for sanctions (Docket Entry No. 40) is DENIED, as provided herein.
The plaintiff seeks sanctions against the defendants for their failure to respond to the
plaintiff's written discovery that the plaintiff had served on October 4, 2012, and for their failure to
comply with the order entered April 9, 2013 (Docket Entry No. 36), which provided that the
defendants had until April 30, 2013, to serve responses to the plaintiff's outstanding written
discovery. Plaintiff's counsel represented that she had made a good faith effort to obtain the
requested discovery without the need for court intervention, but that the defendants "have failed and
refused to provide the discovery responses." Docket Entry No. 40, at 2. As a result, the plaintiff
seeks sanctions under Rule 37(b) of the Federal Rules of Civil Procedure, specifically, entry of
default judgment pursuant to Rule 37(b)(2)(A)(vi), or an order directing that certain designated facts
be established pursuant to Rule 37(b)(2)(A)(i), a ruling that the defendants be held in contempt of
court pursuant to Rule 37(b)(2)(A)(vii), and an award of attorney's fees and expenses pursuant to
Rule 37(b)(2)(C).

1

Although the Bankruptcy Trustee has not been formally substituted as the plaintiff,
plaintiff's counsel has represented that she has been retained by the Trustee to represent him.
2

All proceedings related to the defendants' counter-claim were stayed by order entered
March 20, 2013 (Docket Entry No. 34), as a result of the Chapter 7 Bankruptcy petition filed by the
plaintiff on November 20, 2012, and in accord with the automatic Bankruptcy stay.

In response, the defendants acknowledge that they did not serve responses to the plaintiff's
written discovery in accord with the April 9, 2013, order, but did serve responses in the late
afternoon on May 7, 2013. The defendants ask the Court to refrain from holding them in contempt
and to deny the "extreme sanctions sought" by the plaintiff because of the "exigent circumstances
surrounding this case" and defendants' counsel's belief that plaintiff's counsel was not opposed to a
short extension of time. Docket Entry No. 44, at 2.
Specifically, defendants point out that the plaintiff made no effort to comply with Local
Rule 37.01, and defendant's counsel emailed plaintiff's counsel on May 3, 2013, that he expected to
serve the discovery responses by early the following week, see Docket Entry No. 44-1, to which the
plaintiff made no response but instead filed the motion for sanctions in the morning on May 7, 2013.
Defendants' counsel expressed surprise that plaintiff's counsel did not respond to his email and filed
the motion for sanctions without notice to him because the parties had been "cooperative and
courteous" in prior dealings in the case.
In addition, the defendants point to the plaintiff's Bankruptcy filing, the defendants' motion
to transfer, and settlement discussions that contributed to delaying the progression of the case. The
defendants also explained that the intended withdrawal of out-of-town counsel delayed their
responses because local counsel did not have "immediate access" to necessary documents. See
Docket Entry No. 44, at 7.
The plaintiff did not file or seek to file a reply to the defendants' response.
Local Rule 37.01(a) provides that, prior to filing any discovery motion, counsel for the parties
shall prepare and attach to any discovery motion a joint written statement of the discovery issues.
Local Rule 37.01(b)(3) provides that, when a party files a motion to compel, quash, or for a
protective order, such party shall certify that she has attempted in good faith to resolve the issues
with the opposing party, and that the Court will not consider any such motion absent that
certification. Rule 37(a) of the Federal Rules of Civil Procedure similarly requires such a
certification when filing a motion to compel.
2

However, the plaintiff did not file a motion to compel the defendant to respond to the
discovery requests. Essentially, the plaintiff gave up on the defendants' responding to the written
discovery and sought relief through another route.
However, the Court finds that it was premature for the plaintiff to give up. Plaintiff's counsel
indicates in her motion that she made a good faith effort to obtain the discovery "without the need
for court intervention." The plaintiff does not indicate what "good faith effort" she made, but the
Court assumes that the plaintiff is not referring to any effort after the April 9, 2013, order. It is also
not clear what effort was made prior to the April 9, 2013, order. The order entered March 20, 2013
(Docket Entry No. 34), provided, inter alia, as follows:
Plaintiff’s counsel represented that she had propounded interrogatories and requests
for production on the defendant on October 4, 2012, and, if there was little change
of settlement, a time should be established for the defendants to serve responses.
Counsel were directed to convene another telephone conference call with the Court on April 8, 2013,
to "address whether any potential for settlement remains, and, if not, to establish a deadline for the
defendants to respond to the outstanding written discovery . . . ." On April 8, 2013, as reflected in
the April 9, 2013, order, the defendants were directed to serve responses to the outstanding written
discovery by April 30, 2013, scheduling deadlines were extended, and the trial was rescheduled.
The plaintiff had not previously filed a motion to compel nor is there any indication in the
record that the plaintiff had taken any particular steps to obtain responses to the long overdue
discovery.3
What is particularly troubling is that defendants' counsel emailed plaintiff's counsel on
May 3, 2013, but, instead of responding to defendants' counsel in any way whatsoever, plaintiff's
counsel filed a motion for sanctions on May 7, 2013, with no notice to defendants' counsel.

3

The Court's notes from the January 8, 2013, conference call indicate that plaintiff's counsel
noted that the defendant had not responded to outstanding written discovery, but the Court's memory
is that the plaintiff was not particularly concerned at that time in light of the change of circumstances
because the plaintiff filed for Bankruptcy protection and because the parties wanted to explore the
potential for settlement.
3

While there were some circumstances in this case that may have excused the defendants'
failure to serve responses to the plaintiff's written discovery on a timely basis, the defendants should
have sought a stipulation, in accord with Rules 29 and 33(b)(2) of the Federal Rules of Civil
Procedure or a court order to extend the time to serve responses. Most significantly, when
defendants' counsel knew that he would not be able to respond by the April 30, 2013, deadline
provided in the April 9, 2013, order, it was incumbent upon him to seek an extension of time from
the Court.
On the other hand, the defendants were seven (7) days late in serving their responses. That
delay does not justify the nuclear option that the plaintiff has attempted to exercise, particularly in
light of plaintiff's counsel's failure to respond to defendants' counsel's email of May 3, 2013. A
simple telephone call to defendants' counsel presumably would have obviated the need for the
plaintiff to file any motion whatsoever.4
The Court finds that, under these circumstances, imposition of the sanctions and the
imposition of an award of attorney's fees and expenses would be patently unjust.
Any party desiring to appeal this order of the Magistrate Judge may do so by filing a motion
for review no later than fourteen (14) days from the date of service of this order. The motion for
review must be accompanied by a brief or other pertinent documents to apprise the District Judge
of the basis for the appeal. See Rule 72.02(b)(1) of the Local Rules of Court and Rule 72(a) of the
Federal Rules of Civil Procedure.
It is so ORDERED.

JULIET GRIFFIN
United States Magistrate Judge

4

Alternatively, plaintiff's counsel could have scheduled a conference call with the Court to
address the defendants' failure to serve discovery responses in compliance with the court's prior
order.
4