Automated Merchandis v. Crane Co., et al

Filing 261

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL granting 244 Motion to Compel and Supporting Memorandum in case 3:03-cv-00088-JPB-JES; 213 Motion to Compel in case 3:08-cv-00097-JPB-JES; granting 89 Motion to Compel in c ase 3:04-cv-00048-JPB-JES; granting 78 Motion to Compel in case 3:04-cv-00075-JPB -JES; and granting 86 Motion to Compel in case 3:04-cv-00080-JPB-JES. Defendant Seaga is ORDERED to respond to Plaintiffs requested discovery within seven (7) days of the date of this Memorandum Opinion and Order. Signed by Magistrate Judge James E. Seibert on 6/21/2011. Copy mailed to any counsel not receiving a NEF. Associated Cases: 3:03-cv-00088-JPB -JES, 3:04-cv-00048-JPB -JES, 3:04-cv-00075-JPB -JES, 3:04-cv-00080-JPB -JES, 3:08-cv-00097-JPB -JES(cwm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
AUTOMATED MERCHANDISING
SYSTEMS INC.,
Plaintiff,
v.

Civil Action No. 3:03-cv-88
(consolidated with 3:08-cv-97, 3:04-cv-80,
3:04-cv-75 and 3:04-cv-48)

CRANE CO., and SEAGA
MANUFACTURING, INC.,
Defendants.,
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFF’S MOTION TO COMPEL
This matter comes before the Court on Plaintiff’s, Automated Merchandising Systems,
Inc. (hereinafter “AMS”), Motion to Compel filed June 9, 2011.1 The Court held an evidentiary
hearing and argument on Plaintiff’s Motion on June 17, 2011. Plaintiff appeared by Charles F.
Printz, Jr., Esq. and James D. Berquist, Esq., by phone. Defendant, Crane Co., appeared by John
S. Torkelson, Esq. and Michael T. Smith, Esq., by phone. Defendant, Seaga Manufacturing, Inc.
(hereinafter “Seaga”), appeared by Matthew P. Heiskell, Esq. and Amy L. Linder, Esq., by
phone. No testimony was taken nor was any other evidence adduced.
I. INTRODUCTION
A.

Background
This action was initially filed on December 29, 2003 alleging patent infringement by

Defendant, Crane Co., of four of Plaintiff’s patents in 3:03-cv-88. A detailed history of this

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Dkt. No. 244.
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litigation is set forth in the Order denying Plaintiff’s Motion to Lift Stay (Dkt. No. 185) which
was entered February 2, 2009. Defendant, Seaga, became a Defendant in an action filed by
AMS in this district on June 2, 2008 (3:08-cv-97), more than three years ago. Matthew P.
Heiskell, Esq. and David G. Hansso, Esq. appeared for Defendant, Seaga, on July 31, 2008. The
action was stayed by Order of Court entered on December 2, 2008. The stay was lifted on April
5, 2011 (Dkt. No. 218). Amy L. Lindner, Esq. moved to appear pro hac vice on June 6, 2011.
AMS filed the instant Motion to Compel on June 9, 2011 because Defendant Seaga had not
responded to AMS’ discovery which was served on April 13, 2011.
B.

The Motion
Plaintiff’s Motion to Compel Discovery.2

C.

Decision
Plaintiff’s Motion to Compel discovery response is hereby GRANTED because

Defendant Seaga provided no evidence of legal authority justifying its failure to respond.
II. FACTS
1.

On June 9, 2011, Plaintiff filed a Motion to Compel. (Dkt. No. 244).

2.

This Court set an evidentiary hearing and argument on Plaintiff’s Motion to Compel
for June 17, 2011.

3.

Defendant, Seaga, filed its Response in Opposition to Plaintiff’s Motion on June 13,
2011.3

4.

On June 15, 2011, Plaintiff filed its Reply to Defendant Seaga’s Response.

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Dkt. No. 244.

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Dkt. No. 255.
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5.

The evidentiary hearing and argument was held on June 17, 2011.
III. PLAINTIFF’S MOTION TO COMPEL

A.

Contentions of the Parties
Plaintiff moves for an order compelling Defendant Seaga to “(1) respond to AMS’

written discovery requests, (2) produce a Rule 30(b)(6) witness to testify... and (3)

to

produce Mr. Steven Chesney for deposition.” See Pl.’s Mot. to Compel, Pg. 1 (Dkt. 244). In
support of its Motion, Plaintiff argues the discovery it seeks is “not particularly objectionable or
burdensome” but would merely permit Plaintiff “to confirm how Seaga’s accused vendors
operate, why Seaga contends that it does not infringe [Plaintiff’s] patents, and to learn how much
Seaga has earned from the sale of those products. Id. at 2-3. Plaintiff contends “[w]ithout this
discovery, [Plaintiff] will be forced to either seek modification of Judge Bailey’s Scheduling
Order or to prepare expert reports without this very basic discovery.” Id. at 3.
In opposition, Defendant Seaga contends “[t]he reality is Seaga is a [D]efendant in a
complicated patent suit that is, from Seaga’s vantage point, a very new case.” See Def.’s Resp.,
Pg. 1 (Dkt. 255). Seaga essentially argues Plaintiff’s Motion to Compel could have been
avoided had the parties engaged in a “meet and confer” prior to filing. Id. at 3. Seaga asserts that
it is “willing to respond to all appropriate discovery as soon as it can...” and highlights that
Seaga’s ability to respond “is severely hampered by the fact its main client contact has been in
India for a significant portion of the time in which the parties have been addressing these
discovery issues.” Id. at 4-5. Seaga also contends sanctions are inappropriate because “[n]o
evidence exists that Seaga’s actions merit sanctions.” Id. at 7. Seaga respectfully moves this
Court to deny Plaintiff’s Motion to Compel and request for sanctions.

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1.

Fed. R. Civ. P. 26(f) & Its Effect on Plaintiff’s Motion to Compel

Rule 26(f) of the Federal Rules of Civil Procedure requires parties to an action to confer
at an early stage in the litigation to discuss various subjects identified in the rule including
discovery, and to develop a proposed discovery plan for submission to the Court. Fed. R. Civ. P.
26(f). The rule provides, in relevant part, as follows:
Except in a proceeding exempted from initial disclosure under Rule
26(a)(1)(B) or when the court orders otherwise, the parties must
confer as soon as practicable–and in any event at least 21 days before
a scheduling conference is to be held or a scheduling order is due
under Rule 16(b). (emphasis added).
Fed. R. Civ. P. 26(f)(1).
Additionally, Federal Rule of Civil Procedure 26(d)(1) sets the timing and sequence of
discovery. Rule 26(d)(1) places such matters within the sound discretion of the Court. Fed. R.
Civ. P. 26(d)(1).
Seaga contends its “ability to promptly respond to discovery would be improved if AMS
would 1) cooperate with Seaga by participating in a Rule 26(f) conference, 2) work with Seaga
to assist Seaga to get up to speed in the discovery already conducted and 3) by continuing to
work with Seaga in identifying which of the discovery requests actually relate to AMS’s
forthcoming expert reports to allow Seaga to respond to these requests on an expedited manner.”
See Def.’s Resp., Pg. 6-7 (Dkt. 255). Seaga’s argument is without merit. The stay of discovery
was lifted on April 5, 2011 and a scheduling order was entered requiring AMS to produce its
opening expert reports on July 1, 2011. The timing and sequence of discovery has been set and
the parties must abide by the scheduling order as entered. Accordingly, Defendant Seaga’s
argument in this regard must fail.

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2.

Motion to Compel Analysis

Pursuant to Fed. R. Civ. P. 37(a), a party may move for an order to compel discovery or
disclosure from an opposing party where the opposing party fails to respond or where the party’s
response is evasive or incomplete. Specifically, parties may move for an order compelling an
answer to a deposition question, a designation under Rule 30(b)(6) or Rule 31(a)(4), a response
to an interrogatory, and a response to a request for production. Fed. R. Civ. P. 37(a)(3)(B)(i)(iv). To properly file a motion to compel in this Court, a party must submit with the motion a
statement setting forth “verbatim each discovery request or disclosure requirement and any
response thereto to which an exception is taken.” LR Civ P 37.02(a)(1). When a party refuses to
produce documents or answer interrogatories during discovery, it has a duty to particularize that
objection within the time period provided for discovery responses. Fed. R. Civ. P. 26(b)(5).
Plaintiff argues the discovery it seeks is not particularly objectionable or burdensome
and, therefore, should be produced by Seaga. Seaga has offered no evidence that Plaintiff’s
discovery is particularly objectionable or burdensome nor has Seaga presented any authority
except on the issue of discovery sanctions. Defendant Seaga, instead, chose “self-help,” so to
speak, instead of seeking relief from the Court in the form of a Motion for Extension of Time to
allow Defendant Seaga more time to respond or to modify the scheduling order. See Howard v.
Sweetheart Cup Co., 00-C-648, 2001 U.S. Dist. LEXIS 8682 (N.D. Il. 2001) (“[T]he Court is not
convinced that Sweetheart’s counsel were engaged in a deliberate effort to deceive. Instead, the
evidence indicates that counsel misguidedly used self-help, rather than seeking the Court’s
guidance as they should have, in an effort to narrow the scope of discovery....”). Defendant
Seaga is entitled to no consideration of its position for its refusal to answer. The Court finds

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Plaintiff’s request for sanctions, however, to be inappropriate at this juncture.
C.

Decision
Plaintiff’s Motion to Compel is GRANTED.
Defendant Seaga is ORDERED to respond to Plaintiff’s requested discovery within

seven (7) days of the date of this Memorandum Opinion and Order.
Filing of objections does not stay this Order.
Any party may, within fourteen (14) days after being served with a copy of this Order, file with the
Clerk of the Court written objections identifying the portions of the Order to which objection is
made, and the basis for such objection. A copy of such objections should also be submitted to
District Court Judge of Record. Failure to timely file objections to the Order set forth above will
result in waiver of the right to appeal from a judgment of this Court based upon such Order.
The Clerk of the Court is directed to transmit a copy of this Order to parties who appear pro
se and any counsel of record, as applicable.

IT IS SO ORDERED.
DATED: June 21, 2011

/s/ James E. Seibert
JAMES E. SEIBERT
UNITED STATES MAGISTRATE JUDGE

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