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Blair v. Telperion, Inc.

United States District Court, E.D. Tennessee, Knoxville

May 22, 2019

MARCUS BLAIR, Plaintiff,
v.
TELPERION, INC., Defendant.

          MEMORANDUM AND ORDER

          Debra C. Poplin United States Magistrate Judge.

         This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.

         Now before the Court is Defendant's Motion to Compel Discovery Responses, Deem Requests Admitted, and Amend Scheduling Order [Doc. 12]. Plaintiff has not responded to Defendant's Motion, and the time for doing so has expired. See E.D. Tenn. L.R. 7.2 (“Failure to respond to a motion may be deemed a waiver of any opposition to the relief sought.”). Accordingly, the Court has considered Defendant's requests and finds them to be well taken in part, and therefore, Defendant's Motion is GRANTED IN PART AND DENIED IN PART [Doc. 12].

         I. ANALYSIS

         In the instant Motion, Defendant requests that the Court: (1) compel Plaintiff to respond to written discovery, (2) deem requests for admission admitted, and (3) amend the Scheduling Order. For grounds, Defendant states that it served its First Interrogatories and Requests for Production of Documents to Plaintiff on December 7, 2018. In addition, on the same day, Defendant served Plaintiff with Requests for Admission pursuant to Federal Rule Civil Procedure 36. Defendant states that as of the date of its Motion, Plaintiff has not responded to the above discovery requests.

         Defendant explains that it contacted Plaintiff on numerous occasions, but Plaintiff has not responded to the discovery requests. Defendant includes a certification [Doc. 12-1], stating that it attempted to confer in good faith with Plaintiff in order to resolve the pending discovery disputes, but such attempts have been unsuccessful.

         The Court will address Defendant's requests separately.

         A. Compel Discovery Responses

         As mentioned above, Defendant served its First Interrogatories and Requests for Production of Documents to Plaintiff on December 7, 2018. Plaintiff has not responded to Defendant's discovery requests, and he has not filed a response to the instant Motion.

         Pursuant to Federal Rule of Civil Procedure 37(a) and (b), a party may move for an order compelling answers to interrogatories and production of documents. Because Plaintiff did not respond to the Motion, and has not complied with his discovery obligations, the Court finds Defendant's request well taken. Plaintiff SHALL respond to Defendant's First Interrogatories and Requests for Production of Documents within fourteen (14) days of entry of the instant Memorandum and Order. Plaintiff is hereby ADMONISHED that the failure to respond may warrant sanctions, up to and including dismissal of this action. See Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii).

         Defendant also seeks reasonable expenses, including attorney's fees, associated with filing the Motion. Pursuant to Rule 37(a)(5)(A):

If the motion is granted . . . the court, must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising the conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including the attorney's fees.

         Further, under Rule 37(a)(5)(A), the Court cannot award reasonable expenses if the movant failed to file the good-faith certification, the opposing party's nondisclosure was substantially justified, or other circumstances make an award of expenses unjust. Fed.R.Civ.P. 37(a)(5)(A)(i)-(iii).

         As mentioned above, Plaintiff has not responded to Defendant's discovery requests, despite repeated requests to do so, and he has not responded to the instant Motion. The Court finds an award of reasonable expenses, including attorney's fees, appropriate in this matter. See Knights Armament Co. v. Optical Sys. Tech., Inc., 254 F.R.D. 470, 472 (M.D. Fla. 2008) (explaining that defendant was on notice that plaintiff sought reasonable attorney's fees and had an opportunity to be heard when it responded to plaintiff's motion to compel); Sebring Homes Corp. v. T.R. Arnold & Assocs., Inc.,927 F.Supp. 1098, 1104 (N.D. Ind. 1995) (explaining that plaintiffs had an opportunity to be heard but did not respond to the defendant's motion and that the “court can consider such questions on written submissions as well as on oral hearings”) (quoting Fed.R.Civ.P. 37 advisory committee's note to 1993 amendment). Further, because Plaintiff did not respond to the Motion, the Court cannot find that his nondisclosure was substantially justified or that other circumstances make an award of expenses unjust. See Fed. R. Civ. P. ...


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