Is
IN THE SUPERIOR COURT OF GUAM
STEVEN R. SURBAN, � ,/
DOMESTIC CASE SO. DMO512-13 Plaintiff, DECISION AND ORDER vs.
MARIE JO A. FRIANEZA-SURBAN,
Defendant.
9 INTRODUCTION 10 This matter came before the Honorable James L. Canto II on Plaintiff Steven R. 1I Surban's motion to compel production of discovery and for sanctions, filed March 6, 2014. 12 Oral arguments were heard on June 4, 2014. Attorney Joaquin C. Arriola, Jr. appear ed on 13 be ha lf of Pl a intiff a nd At t o rney Daniel S. Somerfieck represented Defendant Mari e Jo A. 14 F ri aneza-Su rban. Having considered the parties' briefs, oral arguments, and the applicable law, 15 the Court now issues the following Decision and Order. 16 BACKGROUND 17 O n Sept e mber 12, 2013, Plaintiff filed a complaint fo r di vo rce, chi l d cu st o dy, an d 18 support against Defendant. 19 On March 6, 2014, Plaintiff filed a motion to compel production of discovery and for 20 sanctions. Although Plaintiff alleges that he made a good faith effort to obtain the disclosure or 21 discovery without court action, Plaintiff argues that he has not received any discovery at the 22 t i me o f fi l i ng o f t hi s motion after Plaintiff served Defendant with a request for production of 23 documents on November 20, 2013. (Mo t . Co mpel & Sanctions , 34, Ma r. 6, 2014). Plaintiff 24 further requests that Defendant be sanctioned. Id . at 4. 25 On May 5, 2014, Defendant filed an opposition. Defendant explains that the parties 26 were in negotiation toward a settlement wh en Defendant received Plaintiff's request for 27 production of documents on November 20, 2013, and Defendant presented Plaintiff with a 28 proposed Divorce and Property Settlement Agreement. (Opp'n Mot., 2, May 5, 2014). Plaintiff
OR'GINA! Page l of 5 rejected the settlement offer on February 21, 2014. Id. Thereafter, Defendant filed a response
2 to P l ai nt i ff' s requ est or produc tion of doc ume nts o n Ma rc h 27, 2014, a n d a su ppl ement al
3 response on April 29, 2014. Id . Although Defendant' s response to discovery may have been
4 l at e, Defendant argues that sanctions are not warranted when Plaintiff has suffered no prejudice
5 as a result of the delay. Id .
On May 12, 2014, Plaintiff filed a reply. Plaintiff argues that Defendant should be sanctioned when no discovery was produced until after the motion was filed, and for violating
the scheduling order. (Reply, 2-3, May 12, 2014).
On May 16, 2014, Plaintiff filed a supplemental memorandum reiterating that sanctions 10 in the form of attorney's fees are mandatory when Plaintiff made numerous informal efforts to
11 have Defendant respond, Defendant's delay and non-disclosure are not substantially justified, 12 and no circumstances are provided by Defendant whereby an award of expenses would be 13 unjust. (Supp. Memo., 5, May 16, 2014). Furthermore, Plaintiff argues that he is only receiving
14 the requested documents about one month before the trial scheduled for June 18, 2014, and has
1s no opportunity to depose or conduct further discovery prior to trial in light of the documents 16 produced. Id. In sum, Plaintiff expended $3,212.00 in attorney's fees on this motion to compel. 17 Id. 18 On May 27, 2014, Defendant filed an opposition to Plaintiffs supplemental
19 memorandum. As of May 15, 2014, Plaintiff was provided with the documents that were 20 deemed missing at the motion hearing on May 14, 2014. (Opp'n Supp. Memo., 2-3, May 27, 21 2014). Defendant does not argue that the production of documents were tardy, but Defendant 22 stresses the fact that, based upon the circumstances and Defendant's limited financial resources, 23 Defendant made attempts to resolve this matter before incurring additional attorney's fees. Id.
24 at 3. Furthermore, Defendant claims that Plaintiff has suffered no prejudice by the delay in 25 receiving the documents as the parties had already left discovery open until the end of May. Id.
26 On June 4, 2014 at the pre-trial conference, Plaintiff confirmed that he received all the 27 requested documents. (PTC, Record Log at 9:33:53, Jun. 4, 2014). The parties agreed to begin 28
G°IGINAt Page 2 of 5 depositions in the following week, and the motion for sanctions was taken under advisement.
Id. DISCUSSION
1. Sanctions under Rule 37 of the Guam Rules of C ivil Procedure
Under the Gu am Rules of C ivil Procedure (GRCP ), "[ i] f a pa rty fails to make a disclosure required b y Rule 26(a), another party m a y m o v e to co mpel disclosure an d for
7 appro pri at e sanct i o ns." Guam R. Civ. P. 37 (a) (2) (A) (2010). If the motion to c ompe l is 8 granted or, alternatively, if the disclosure or requested discovery is provided after the motion 9 was filed,
10 "the court shall, after affording an opportunity to be heard, require the party or II deponent whose conduct necessitated the motion or the party or attorney advising su ch co ndu ct o r bo t h o f t hem t o pay t o t he mo vi ng part y t he reaso nabl e expenses 12 incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to 13 obtain the disclosure or discovery without court action, or that the opposing 14 party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust." 15 Guam R. Civ. P. 37 (a) (4) (A) (2010). 16 In this case, Plaintiff served Defendant with a request for a production of documents on 17 November 20, 2013. (Mot. Compel & Sanctions, 3, Mar. 6, 2014). Plaintiffs counsel sent e- 18 mails to Defendant's counsel on November 25, 2013, January 24, 2014, January 30, 2014, and 19 March 5, 2014 requesting the production of documents. (Reply, Exhibits A-D, May 12, 2014). 20 Defendant provided a response to Plaintiffs request on March 27, 2014 and a supplemental 21 response on April 29, 2014. (Opp'n Mot., 2, May 5, 2014). Defendant provided Plaintiff with 22 the remaining requested disclosures on May 15, 2014. (Opp'n Supp. Memo., 2-3, May 27, 23 2014). Defendant argues that the delay in the disclosure of the requested documents stem from 24 the failed negotiations toward a settlement, which ultimately concluded on February 21, 2014, 25 and the "unduly burdensome discovery." (Opp'n Mot., 2, May 5, 2014); (Opp'n Supp. Memo., 26 3-4, May 27, 2014). Defendant further argues that sanctions are not warranted when Plaintiff 27 has suffered no prejudice by the delay. (Opp'n Supp. Memo., 3, May 27, 2014). 28
R?11GIN A l
Page 3 of 5 I Considering the arguments set forth by the parties above, the Court finds that Plaintiff 2 made good faith efforts to obtain the discovery without court action. Guam R. Civ. P. 37 (a) (4)
3 (A) (2010). Th e Court notes Defend ant's argu ment that the failed negotiations t o ward a
4 settlement supposedly justify the Defendant's non-production of the documents. Ho wever,
5 there was no evidence presented to corroborate this argument, or to show that Plaintiff agreed to
6 stall discovery while negotiation discussions ensued. In fact, the evidence presented of emails
7 sent by Plaintiff belies this argument. (Reply, Attachments A - D inclusive, May 12, 2014). 8 Furthermore, Defendant' s argument still does not justify the Defendant's failure to produce
9 initial disclosures when required at the relative inception of the case.
10 This Court encourages efforts toward possible settlement of matters, and generally agrees that incurring legal expenses to compile and produce discovery is unnecessary if
12 settlement can be reached.
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Is
IN THE SUPERIOR COURT OF GUAM
STEVEN R. SURBAN, � ,/
DOMESTIC CASE SO. DMO512-13 Plaintiff, DECISION AND ORDER vs.
MARIE JO A. FRIANEZA-SURBAN,
Defendant.
9 INTRODUCTION 10 This matter came before the Honorable James L. Canto II on Plaintiff Steven R. 1I Surban's motion to compel production of discovery and for sanctions, filed March 6, 2014. 12 Oral arguments were heard on June 4, 2014. Attorney Joaquin C. Arriola, Jr. appear ed on 13 be ha lf of Pl a intiff a nd At t o rney Daniel S. Somerfieck represented Defendant Mari e Jo A. 14 F ri aneza-Su rban. Having considered the parties' briefs, oral arguments, and the applicable law, 15 the Court now issues the following Decision and Order. 16 BACKGROUND 17 O n Sept e mber 12, 2013, Plaintiff filed a complaint fo r di vo rce, chi l d cu st o dy, an d 18 support against Defendant. 19 On March 6, 2014, Plaintiff filed a motion to compel production of discovery and for 20 sanctions. Although Plaintiff alleges that he made a good faith effort to obtain the disclosure or 21 discovery without court action, Plaintiff argues that he has not received any discovery at the 22 t i me o f fi l i ng o f t hi s motion after Plaintiff served Defendant with a request for production of 23 documents on November 20, 2013. (Mo t . Co mpel & Sanctions , 34, Ma r. 6, 2014). Plaintiff 24 further requests that Defendant be sanctioned. Id . at 4. 25 On May 5, 2014, Defendant filed an opposition. Defendant explains that the parties 26 were in negotiation toward a settlement wh en Defendant received Plaintiff's request for 27 production of documents on November 20, 2013, and Defendant presented Plaintiff with a 28 proposed Divorce and Property Settlement Agreement. (Opp'n Mot., 2, May 5, 2014). Plaintiff
OR'GINA! Page l of 5 rejected the settlement offer on February 21, 2014. Id. Thereafter, Defendant filed a response
2 to P l ai nt i ff' s requ est or produc tion of doc ume nts o n Ma rc h 27, 2014, a n d a su ppl ement al
3 response on April 29, 2014. Id . Although Defendant' s response to discovery may have been
4 l at e, Defendant argues that sanctions are not warranted when Plaintiff has suffered no prejudice
5 as a result of the delay. Id .
On May 12, 2014, Plaintiff filed a reply. Plaintiff argues that Defendant should be sanctioned when no discovery was produced until after the motion was filed, and for violating
the scheduling order. (Reply, 2-3, May 12, 2014).
On May 16, 2014, Plaintiff filed a supplemental memorandum reiterating that sanctions 10 in the form of attorney's fees are mandatory when Plaintiff made numerous informal efforts to
11 have Defendant respond, Defendant's delay and non-disclosure are not substantially justified, 12 and no circumstances are provided by Defendant whereby an award of expenses would be 13 unjust. (Supp. Memo., 5, May 16, 2014). Furthermore, Plaintiff argues that he is only receiving
14 the requested documents about one month before the trial scheduled for June 18, 2014, and has
1s no opportunity to depose or conduct further discovery prior to trial in light of the documents 16 produced. Id. In sum, Plaintiff expended $3,212.00 in attorney's fees on this motion to compel. 17 Id. 18 On May 27, 2014, Defendant filed an opposition to Plaintiffs supplemental
19 memorandum. As of May 15, 2014, Plaintiff was provided with the documents that were 20 deemed missing at the motion hearing on May 14, 2014. (Opp'n Supp. Memo., 2-3, May 27, 21 2014). Defendant does not argue that the production of documents were tardy, but Defendant 22 stresses the fact that, based upon the circumstances and Defendant's limited financial resources, 23 Defendant made attempts to resolve this matter before incurring additional attorney's fees. Id.
24 at 3. Furthermore, Defendant claims that Plaintiff has suffered no prejudice by the delay in 25 receiving the documents as the parties had already left discovery open until the end of May. Id.
26 On June 4, 2014 at the pre-trial conference, Plaintiff confirmed that he received all the 27 requested documents. (PTC, Record Log at 9:33:53, Jun. 4, 2014). The parties agreed to begin 28
G°IGINAt Page 2 of 5 depositions in the following week, and the motion for sanctions was taken under advisement.
Id. DISCUSSION
1. Sanctions under Rule 37 of the Guam Rules of C ivil Procedure
Under the Gu am Rules of C ivil Procedure (GRCP ), "[ i] f a pa rty fails to make a disclosure required b y Rule 26(a), another party m a y m o v e to co mpel disclosure an d for
7 appro pri at e sanct i o ns." Guam R. Civ. P. 37 (a) (2) (A) (2010). If the motion to c ompe l is 8 granted or, alternatively, if the disclosure or requested discovery is provided after the motion 9 was filed,
10 "the court shall, after affording an opportunity to be heard, require the party or II deponent whose conduct necessitated the motion or the party or attorney advising su ch co ndu ct o r bo t h o f t hem t o pay t o t he mo vi ng part y t he reaso nabl e expenses 12 incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to 13 obtain the disclosure or discovery without court action, or that the opposing 14 party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust." 15 Guam R. Civ. P. 37 (a) (4) (A) (2010). 16 In this case, Plaintiff served Defendant with a request for a production of documents on 17 November 20, 2013. (Mot. Compel & Sanctions, 3, Mar. 6, 2014). Plaintiffs counsel sent e- 18 mails to Defendant's counsel on November 25, 2013, January 24, 2014, January 30, 2014, and 19 March 5, 2014 requesting the production of documents. (Reply, Exhibits A-D, May 12, 2014). 20 Defendant provided a response to Plaintiffs request on March 27, 2014 and a supplemental 21 response on April 29, 2014. (Opp'n Mot., 2, May 5, 2014). Defendant provided Plaintiff with 22 the remaining requested disclosures on May 15, 2014. (Opp'n Supp. Memo., 2-3, May 27, 23 2014). Defendant argues that the delay in the disclosure of the requested documents stem from 24 the failed negotiations toward a settlement, which ultimately concluded on February 21, 2014, 25 and the "unduly burdensome discovery." (Opp'n Mot., 2, May 5, 2014); (Opp'n Supp. Memo., 26 3-4, May 27, 2014). Defendant further argues that sanctions are not warranted when Plaintiff 27 has suffered no prejudice by the delay. (Opp'n Supp. Memo., 3, May 27, 2014). 28
R?11GIN A l
Page 3 of 5 I Considering the arguments set forth by the parties above, the Court finds that Plaintiff 2 made good faith efforts to obtain the discovery without court action. Guam R. Civ. P. 37 (a) (4)
3 (A) (2010). Th e Court notes Defend ant's argu ment that the failed negotiations t o ward a
4 settlement supposedly justify the Defendant's non-production of the documents. Ho wever,
5 there was no evidence presented to corroborate this argument, or to show that Plaintiff agreed to
6 stall discovery while negotiation discussions ensued. In fact, the evidence presented of emails
7 sent by Plaintiff belies this argument. (Reply, Attachments A - D inclusive, May 12, 2014). 8 Furthermore, Defendant' s argument still does not justify the Defendant's failure to produce
9 initial disclosures when required at the relative inception of the case.
10 This Court encourages efforts toward possible settlement of matters, and generally agrees that incurring legal expenses to compile and produce discovery is unnecessary if
12 settlement can be reached. However, in this case there was no evidence offered to show that 13 any settlement negotiation discussions included a mutual agreement between the parties to 14 temporarily halt the discovery process. This Court will not tolerate the frustration of entitlement 15 to discovery, nor will this Court foster a perceived culture of blithely overlooking inexcusable 16 discovery violations. By neglecting to enforce GRCP Rule 37, this Court would be equally 17 blameworthy of violating the civil procedure rules by indulging the discovery violator with its 18 own capricious lack of regard for the rule of law. See Fennell v. First Step Designs, Ltd, 83 19 F.3d 526, 533 (1st Cit. 1996) (finding that discovery matters are for the informed discretion of 20 the trial court and that the breath of that discretion is great). 21 For these reasons, the Court hereby grants Plaintiff's motion. Pursuant to GRCP Rule
22 37(a)(4)(A), the Court finds that the reasonable expenses incurred by Plaintiff, including
23 attorney's fees, for generating the necessary motion and its consequent filings equals One 24 Thousand Dollars ($1,000.00). (See Reply, 2-3, May 12, 2014). Therefore, this Court imposes
25 a monetary sanction of that same amount upon Defendant, in accordance with GRCP Rule 26 37(a)(4)(A). 27
U I N,A
Page 4 of 5 •
I /
CONCLUSION Based upon the foregoing, Plaintiff ' s motion for sanctions is hereby GRANTED. The
Court imposes a monetary sanction upon Defendant in the amount of One Thousand Dollars
($1,000 . 00) to be paid by Defendant to Plaintiff for reimbursement to Plaintiff of reasonable
6 expenses and attorney ' s fees incurred in making the GRCP Rule 37 motion.
SO ORDERED this 2 5 / 4 day of August, 2014. 10
1I
12 HON. JAMES L. CANTO II 13 Judge, Superior Court of Guam 14 15 16
I8
26 SERVICE VIA COURT Box I acknowledge Mn a copy of the 27 original hxeta was placed In A.
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