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Fleming v. Parnell

United States District Court, W.D. Washington, Tacoma

April 10, 2014

DERRAL FLEMING, and MAG ENTERPRISES, LLC, Plaintiffs,
v.
SCOTT PARNELL, and SAMSON SPORTS, LLC, Defendants.

ORDER ON PLAINTIFFS' MOTION FOR RULE 37 ORDER

BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on Plaintiffs' Motion for Rule 37 Order (Dkt. 77). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby denies the motion for the reasons stated herein.

I. PROCEDURAL HISTORY

On February 14, 2014, Plaintiff filed this Motion for Rule 37 Order pursuant to Fed.R.Civ.P. 26, 33, 34, and 37(a), asking the Court to "(1) order full and complete response to Request for Production No. 28; (2) order production of the electronic copies of the copyright deposits that Defendants uploaded to the Copyright Office upon which the copyright registrations asserted in this action are based; [and] (3) bar Defendants from presenting evidence on the 2012 copyright applications, striking them from the pleadings." Dkt. 77 at 1. Plaintiffs also request expenses pursuant to Fed.R.Civ.P. 37(a)(5). Id. at 2.

Defendants responded on March 3, 2014, arguing that Plaintiffs have not stated and cannot state sufficient justification for their requests because they have not satisfied the conferral requirements of Fed.R.Civ.P. 37(a)(1). Dkt. 99.

On March 6, 2014, Plaintiffs replied that Defendants repeatedly obstructed Plaintiffs' attempts to discover evidence, deleted evidence, and gave Plaintiffs lastminute discovery. Dkt. 103 at 1. Plaintiffs allege that Defendants failed to confer in good faith on some issues, but do not address the meet and confer requirements raised by Defendants' response. See id. at 2.

II. DISCUSSION

Fed. R. Civ. P. 37(a)(1) requires that a party moving for an order compelling disclosure or discovery include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action. Local Rule CR 37(a)(1) provides that a good faith effort by the movant to confer with the party or person not making a disclosure or discovery requires a face-to-face meeting or a telephone conference.

Plaintiffs did not include a certification in the motion that they conferred or attempted to confer with counsel for Defendants regarding the responses to Plaintiffs' requests. Plaintiffs do not address the meet and confer requirement directly, but they mention that they conferred with Defendants at some points earlier in the discovery process. However, that is not a sufficient showing that Plaintiffs have attempted to meet and confer to resolve the issues presented in this motion. In fact, Plaintiffs state that upon discovery of at least one of the issues in the motion, Plaintiffs' counsel immediately notified defense counsel that he would be filing a motion to compel. Dkt. 77 at 10-11. That is precisely the behavior that Rule 37 seeks to avoid. Failure to satisfy this requirement is a sufficient basis for denial of Plaintiffs' motion. See, e.g., Beasley v. State Farm Mut. Auto. Ins. Co., 2014 WL 1268709 (W.D. Wash. Mar 25, 2014).

III. ORDER

Therefore, it is hereby ORDERED that Plaintiff's Motion to Rule 37 Order (Dkt. 77) is DENIED.


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