Cotracom Commodity Trading Co. v. Seaboard Corp.

189 F.R.D. 456, 45 Fed. R. Serv. 3d 796, 1999 U.S. Dist. LEXIS 15996, 1999 WL 951675
CourtDistrict Court, D. Kansas
DecidedOctober 1, 1999
DocketNo. Civ.A. 97-2391-GTV
StatusPublished
Cited by38 cases

This text of 189 F.R.D. 456 (Cotracom Commodity Trading Co. v. Seaboard Corp.) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 456, 45 Fed. R. Serv. 3d 796, 1999 U.S. Dist. LEXIS 15996, 1999 WL 951675 (D. Kan. 1999).

Opinion

MEMORANDUM AND ORDER

RUSHFELT, United States Magistrate Judge.

The court has under consideration Defendant Seaboard Corporation’s Motion to Compel Discovery from Plaintiffs and for Sanctions (doc. 108). Pursuant to Fed.R.Civ.P. 37, defendant seeks an order to compel plaintiffs to comply with this court’s order of May 6, 1998, and to respond to Defendants’ Second Request for Production of Documents. It also seeks sanctions against plaintiffs. Plaintiffs oppose the motion. By letter they ask the court to permit oral argument. The court finds no need for oral argument. It thus denies the request. It will rule on the written briefs.

I. Post-Reply Briefing

The Rules of Practice of the United States District Court for the District of Kansas authorize a reply brief within ten days of the filing of an opposition to a motion. See D.Kan.Rule 7.1. The court has discretion to permit subsequent briefing. See Mike v. Dymon, Inc., No. Civ.A. 95-2405-EEO, 1996 WL 427761, at *2 (D.Kan. July 25, 1996). It likewise has discretion to consider the additional, unauthorized briefing now before it. It rarely exercises such discretion. It declines to do so here.

Defendant claims to file its supplemental memorandum “to bring a very serious matter to the Court’s attention.” It then proceeds to expand the original issues of its motion. It asks the court to dismiss the claims of plaintiffs with prejudice, as a sanction for violations of discovery rules and orders of the court. Such request has no proper place in a “supplement” to a motion filed months before. Defendant originally sought only monetary sanctions. The court declines to expand the pending motion by a supplement.

II. Motion to Compel

The motion seeks an order to compel plaintiffs to respond to Defendants’ Second Request for Production of Documents. Before considering the merits of that part of the motion, the court must determine whether defendant has complied with the conference requirements of the Federal Rules of Civil Procedure and Rules of Practice of the United States District Court for the District of Kansas before filing its motion to compel. Plaintiffs contend that defendant made no serious effort to resolve the dispute prior to filing the motion. By filing no timely reply brief against the opposition of plaintiffs, defendant has acquiesced to the factual allegations contained therein. Hertenstein v. Kimberly Home Health Care, Inc., 189 F.R.D. 620, 634-35 (D.Kan.1999). The court, nevertheless, applies the law to those facts. It thus considers the steps taken by defendant and determines whether they fulfill the duty to confer.

[458]*458Defendant attaches an affidavit to its memorandum in support of the motion, wherein its attorney avers: “I have conferred by telephone on numerous occasions with counsel for Plaintiffs, Stephen Sacks and John Massaro, in a good faith effort to resolve this discovery dispute.” (Aff. Paul W. Rebein, attached as Ex. D to Mem.Supp.Mot. Compel & Sanctions at H 4, doc. 109, hereinafter Mem.Supp.) Mr. Rebein also attaches five letters to his affidavit “which reflect the efforts to resolve the dispute.” (Id.)

On October 1, 1998, defendant hand-delivered the requests here at issue to counsel for plaintiff. (Letter from Rebein to Sacks of 11/17/98, at 111, attached as Ex. 3 to Aff. of Rebein.) On October 29, 1998, plaintiffs served written responses to them. (Pis.’ Resp. to Second Reqs. Produc., attached as Ex. 3 to Pis.’ Opp’n to Mot. Compel, doc. 114, hereinafter Opp’n.) They raised both general and specific objections against the requests. (Id.) They also stated generally that they

will produce any documents responsive to the requests and not subject to the objections ... at a time and place to be agreed upon by counsel, and stand ready to discuss their response to any individual request with counsel for Seaboard Corporation in an effort to reach compromise on any disputed matters.

(Id. at 2.)

The following constitutes a chronology of the efforts to confer on the discovery dispute now before the court:

1. On October 30, 1998, defense counsel “called Mr. Massaro and requested that all responsive documents be copied and sent to [him].” (Letter from Rebein to Sacks of 11/17/98, at 113, attached as Ex. 3 to Aff. of Rebein.)

2. On November 5, 1998, defense counsel faxed a letter to Mr. Massaro. It states in its entirety:

As I informed you in our telephone conference of October 30,1998, we want copies of all of the documents that are responsive to Defendants’ Second Request for Production of Documents. It was my understanding that you were going to forward those documents to me, but we have still not received them. Please send them to me via Federal Express as soon as possible.

(Letter from Rebein to Massaro of 11/5/98, attached as Ex. 1 to Aff. of Rebein.) Mr. Massaro sent a return fax to Mr. Rebein, wherein he states:

On the issue of our documents, as I mentioned on the phone, consistent with the terms of our written response to your request, I will provide you with any documents that are located and provided to me as expeditiously as possible. At present, we are continuing to search for any responsive documents that may exist; my understanding is none have been located yet.

(Letter from Massaro to Rebein of 11/6/98, attached as Ex. 2 to Aff. of Rebein.)

3. On November 10, 1998, defense counsel called the office of Mr. Massaro. He learned that Mr. Massaro was on vacation until November 23, 1998. He thus called co-counsel Stephen Sacks, who informed him that he was not prepared to discuss the document production. (Letter from Rebein to Sacks of 11/17/98, at 116.)

4. On November 11,1998, Mes'srs. Rebein and Sacks spoke via telephone. Mr. Sacks declined to discuss the document production. He stated that Mr. Massaro was handling the matter. He further stated that only Mr. Massaro possessed sufficient knowledge to address the dispute. He declined to disturb the vacation of Mr. Massaro. He, nevertheless, agreed to check to see whether plaintiffs had responsive documents. (Id. at H 7.)

5. On November 17, 1998, defense counsel sent a. fax summarizing the efforts to obtain the document production. He also expressed a belief that a motion to compel was within the rights of his clients. He stated:

[459]*459(Id.) Mr. Sacks immediately responded to the fax of November 17, 1998, with his own fax. He again explained that Mr. Massaro was in charge of handling the issue of document production. He further explained that Mr. Massaro would return from Australia on November 23, 1998. He also noted that Thanksgiving fell on November 26,1998. He concluded by suggesting that the unilaterally-imposed deadline was unreasonable. (Letter from Sacks to Rebein of 11/17/97, attached as Ex. 4 to Aff. of Rebein.) After returning from vacation, Mr. Massaro sent a follow-up fax to Mr. Rebein on November 24, 1998, wherein he stated:

[458]*458In an effort to cooperate with counsel, however, we are going to hold off on filing a motion to compel until Mr.

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189 F.R.D. 456, 45 Fed. R. Serv. 3d 796, 1999 U.S. Dist. LEXIS 15996, 1999 WL 951675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cotracom-commodity-trading-co-v-seaboard-corp-ksd-1999.