Newcomb v. Pick Point Enterpr.

Opinion

Newcomb v. Pick Point Enterpr. CV-95-109-SD 09/12/95 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Nelson F. Newcomb, Sr.

v. Civil No. 95-109-SD

Pick Point Enterprises, Inc.; Nelson F. Newcomb, Jr.

O R D E R

This matter has come before the court on plaintiff's Motion to Compel Answers to Interrogatories and Production of Documents and Things. Defendants have objected to the reguested relief, and plaintiff has filed a surreply thereto.

Background

Pursuant to Rules 33 and 34, Fed. R. Civ. P., plaintiff submitted his first set of interrogatories and reguested the production of documents and things from the defendants on April 21, 1995. Plaintiff's Motion 5 1. Upon reguest, defense counsel was granted an extension of an unspecified amount of time to respond. Thereafter, plaintiff "indicated . . . by letter dated June 7, 1995, that if the case did not settle within ten (10) days, the defendants' answers and responses to the discovery

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requests would be needed." Id. 5 2. By subsequent letter dated July 24, 1995, plaintiff extended this deadline to July 28, 1995. Id. 5 3. With the discovery requests still outstandinq, plaintiff filed the instant motion with this court on Auqust 2, 1995.

By medium of objection, filed Auqust 14, 1995, defendants assert that "[t]he parties have produced initial documentation1 and expect to meet within the next 14 days for settlement neqotiations." Defendants' Objection 5 1. In liqht of the possibility of settlement neqotiations, defendants further assert that "[n]o sound reason exists to not allow an additional 14 days to compile all of the documents necessary to respond to the interroqatories." Id. 5 2. However, in papers filed Auqust 25, 1995, plaintiff notes that "the fourteenth day will be Monday, Auqust 28, 1995, and as of the date of filinq this Response no meetinq has been scheduled." Plaintiff's Response to Defendants' Objection 5 3.

Discussion

Resolution of the motion sub judice requires application of

1The court notes that the extent of the purported "initial documentation" production "consists of the tax returns of Pick Point Enterprises, Inc. from 1990 throuqh 1994, and the financial reports for Pick Point Enterprises, Inc. from 1992 throuqh 1994." Plaintiff's Response to Defendants' Objection 5 2.

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Rule 37, Fed. R. Civ. P., which provides "a mechanism for addressing failures to cooperate in discovery," United States v. One 198 7 BMW 32 5, 985 F.2d 655, 660 (1st Cir. 1993), and further contains "specific provisions for a progression of remedies if a court encounters footdragging in the answering of interrogatories [and/or the production of documents,]" id.; see also Rule 37(a)(2)(A), Fed. R. Civ. P.

According to the papers submitted, plaintiff initially sought discovery on April 21, 1995. Defendants' answers were thus due, in accordance with the rule, thirty days hence, or May 21, 1995. Plaintiff extended this deadline at defendants' reguest to June 17, 1995. After this date had come and gone, plaintiff granted defendants until July 28, 1995, before seeking the court's assistance. Defendants indicated that settlement negotiations would take place by August 28, 1995, at the latest, and thus ruling on the August 2, 1995, motion to compel was unnecessary.

As of the date of this order, it appears to the court that plaintiff's April 21, 1995, discovery reguest is still unsatisfied. Accordingly, the court concludes that an order to compel defendants' response to plaintiff's discovery reguests is both appropriate and warranted. The court further finds and rules that defendants shall have ten days from the date of this

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order in which to show the court, by written brief, that circumstances surrounding their failure to timely respond to plaintiff's discovery requests make an otherwise mandatory award of expenses unjust. See Rule 37(a)(4)(A), Fed. R. Civ. P.2 Accord 10A F e d e r a l Procedure, L. Ed. § 26:629 (1994); 4A J a m e s Wm . M o o r e , M o o r e 's F e d e r a l P r a c t i c e 5 37.02 [10.-1] (1995).

Conclusion

For the reasons set forth herein, plaintiff's Motion to Compel Answers to Interrogatories and Production of Documents and Things (document 16) is granted. Defendants shall provide the requested discovery without further delay. In addition, defendants shall have ten days from the date of this order to

2The issuance of costs upon granting a motion to compel is expressed in the rule in mandatory terms.

If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion . . . to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that . . . the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.

Rule 37(a)(4)(A), Fed. R. Civ. P.

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file a written brief on the issue of the propriety of awarding expenses.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

September 12, 1995

cc: Eaton W. Tarbell, Jr., Esq.

Michael R. Callahan, Esq.