United States District Court, D. Nebraska
Michael D. Nelson United States Magistrate Judge
matter is before the Court on Plaintiff's Motion to
Compel Initial Disclosures and Responses to Discovery
Requests (Filing No. 20). Defendants did not respond
to the motion. The Court will grant the motion.
to the Court's December 14, 2018, Initial Progression
Order, the deadline to serve initial mandatory disclosures
was January 13, 2019. (Filing No. 14). On February
11, 2019, counsel for Plaintiff emailed defense counsel
regarding Defendants' outstanding initial disclosures and
requested they be provided as soon as possible. (Filing
No. 20-3). Plaintiff states it has not received
Defendants' mandatory disclosures nor has defense counsel
responded to emails regarding the status of their mandatory
disclosures. (Filing No. 20).
February 12, 2019, Plaintiff served Defendants with its
Request for Premises Inspection, Requests for Production,
Requests for Admissions, and Interrogatories. (Filing No.
20-2). On March 15, 2019, counsel for Plaintiff emailed
defense counsel regarding Defendants' failure to provide
initial disclosures and failure to respond to Plaintiff's
discovery requests. (Filing No. 20-4).
Plaintiff's counsel left telephone messages for defense
counsel on May 20 and May 30, 2019, regarding Defendants'
outstanding mandatory disclosures and discovery requests.
(Filing No. 20 at p. 2). Receiving no response,
Plaintiff filed the instant motion to compel on May 30, 2019,
requesting the Court order Defendants to serve their
mandatory disclosures and to respond to the outstanding
discovery requests, and for an award of attorney's fees.
Plaintiff also asks that the summary judgment deadline to be
stayed or continued until Defendants provide Plaintiff with
complete discovery responses.
must serve answers, responses, and any objections to properly
served interrogatories, requests for production, and requests
for admissions within thirty days of service. See
Fed.R.Civ.P. 33(b)(2), 34(b)(2)(A), and 36(a)(3).
Additionally, the Court ordered the parties to serve their
initial disclosures described in Fed.R.Civ.P. 26(a)(1) by
January 13, 2019. (Filing No. 14). Based on the
record before the Court, Defendants have failed to respond to
discovery requests and failed to serve initial mandatory
disclosures. Defendants did not request any extensions of
time to provide discovery responses, did not provide any
reason for the failure to respond to discovery, and filed no
response to this motion to compel. In consideration of the
above, the Court finds that Plaintiff's motion to compel
should be granted.
also requests attorneys' fees of at least $625 associated
with filing the instant motion. (Filing No. 20 at p.
6). Fed.R.Civ.P. 37(a)(5)(A) provides that if a motion
to compel disclosure or discovery 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 that conduct, or both to pay
the movant's reasonable expenses incurred in making the
motion, including attorney's fees.” Plaintiff's
counsel certifies he attempted in good faith to obtain
Defendants' mandatory disclosures and discovery responses
before filing the present motion. (Filing No. 20 at p.
7). Defendants' failure to serve mandatory
disclosures and discovery responses required Plaintiff to
file a motion to compel. Therefore, the Court shall, after
providing Defendants with a chance to respond, grant
Plaintiff's reasonable expenses for filing this motion,
unless Defendants show substantial justification for the
failure to provide the disclosures or that other
circumstances would make an award of expenses unjust. See
Fed.R.Civ.P. 37(a)(5). Accordingly, IT IS
Plaintiff's Motion to Compel Initial Disclosures and
Responses to Discovery Requests (Filing No. 20) is
Pursuant to Fed.R.Civ.P. 36(a)(3), Defendants are deemed to
have admitted to the matters in Plaintiff's Requests for
or before July 1, 2019, Defendants shall
serve Plaintiff with their Rule 26(a)(1) mandatory
disclosures and file a certification of the service pursuant
to NECivR 26.1, and shall serve responses to
Plaintiff's Request for Premises Inspection, Request for
Production, and Interrogatories, without objections.
Defendants shall have until July 1, 2019, to
show cause why Plaintiff's reasonable expenses incurred
in filing this motion, including the award of attorneys'
fees under Rule 37, should not be imposed. If Defendant fails
to respond, Plaintiff is granted leave to file an application
for the award of the costs and fees accompanied by an
affidavit of such costs and fees, pursuant to NECivR. 54.3
deadline for filing motions to dismiss and motions for
summary judgment is extended to July 22,
2019. The pretrial conference and trial are
canceled, and will be re-set, if necessary, ...