Fleming et al v. Parnell et al

Filing 120

ORDER denying 77 Motion for Relief Under Rule 37 by Judge Benjamin H Settle.(TG)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 DERRAL FLEMING, and MAG ENTERPRISES, LLC, 9 Plaintiffs, 10 v. 11 SCOTT PARNELL, and SAMSON 12 SPORTS, LLC, 13 CASE NO. C13-5062 BHS ORDER ON PLAINTIFFS’ MOTION FOR RULE 37 ORDER Defendants. 14 This matter comes before the Court on Plaintiffs’ Motion for Rule 37 Order (Dkt. 15 16 77). The Court has considered the pleadings filed in support of and in opposition to the 17 motion and the remainder of the file and hereby denies the motion for the reasons stated 18 herein. I. PROCEDURAL HISTORY 19 20 On February 14, 2014, Plaintiff filed this Motion for Rule 37 Order pursuant to 21 Fed. R. Civ. P. 26, 33, 34, and 37(a), asking the Court to “(1) order full and complete 22 response to Request for Production No. 28; (2) order production of the electronic copies ORDER ON PLAINTIFFS’ MOTION TO RULE 37 - 1 1 of the copyright deposits that Defendants uploaded to the Copyright Office upon which 2 the copyright registrations asserted in this action are based; [and] (3) bar Defendants from 3 presenting evidence on the 2012 copyright applications, striking them from the 4 pleadings.” Dkt. 77 at 1. Plaintiffs also request expenses pursuant to Fed. R. Civ. P. 5 37(a)(5). Id. at 2. 6 Defendants responded on March 3, 2014, arguing that Plaintiffs have not stated 7 and cannot state sufficient justification for their requests because they have not satisfied 8 the conferral requirements of Fed. R. Civ. P. 37(a)(1). Dkt. 99. 9 On March 6, 2014, Plaintiffs replied that Defendants repeatedly obstructed 10 Plaintiffs’ attempts to discover evidence, deleted evidence, and gave Plaintiffs last11 minute discovery. Dkt. 103 at 1. Plaintiffs allege that Defendants failed to confer in 12 good faith on some issues, but do not address the meet and confer requirements raised by 13 Defendants’ response. See id. at 2. 14 II. DISCUSSION 15 Fed. R. Civ. P. 37(a)(1) requires that a party moving for an order compelling 16 disclosure or discovery include a certification that the movant has in good faith conferred 17 or attempted to confer with the person or party failing to make disclosure or discovery in 18 an effort to obtain it without court action. Local Rule CR 37(a)(1) provides that a good 19 faith effort by the movant to confer with the party or person not making a disclosure or 20 discovery requires a face-to-face meeting or a telephone conference. 21 Plaintiffs did not include a certification in the motion that they conferred or 22 attempted to confer with counsel for Defendants regarding the responses to Plaintiffs’ ORDER ON PLAINTIFFS’ MOTION TO RULE 37 - 2 1 requests. Plaintiffs do not address the meet and confer requirement directly, but they 2 mention that they conferred with Defendants at some points earlier in the discovery 3 process. However, that is not a sufficient showing that Plaintiffs have attempted to meet 4 and confer to resolve the issues presented in this motion. In fact, Plaintiffs state that upon 5 discovery of at least one of the issues in the motion, Plaintiffs’ counsel immediately 6 notified defense counsel that he would be filing a motion to compel. Dkt. 77 at 10–11. 7 That is precisely the behavior that Rule 37 seeks to avoid. Failure to satisfy this 8 requirement is a sufficient basis for denial of Plaintiffs’ motion. See, e.g., Beasley v. 9 State Farm Mut. Auto. Ins. Co., 2014 WL 1268709 (W.D. Wash. Mar 25, 2014). 10 11 III. ORDER Therefore, it is hereby ORDERED that Plaintiff’s Motion to Rule 37 Order (Dkt. 12 77) is DENIED. 13 Dated this 10th day of April, 2014. A 14 15 BENJAMIN H. SETTLE United States District Judge 16 17 18 19 20 21 22 ORDER ON PLAINTIFFS’ MOTION TO RULE 37 - 3

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