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Hilsen v. American Sleep Alliance, LLC

United States District Court, D. Utah, Central Division

January 10, 2017

KENNETH L. HILSEN, Plaintiff,
v.
AMERICAN SLEEP ALLIANCE, LLC, et al. Defendants.

          MEMORANDUM DECISION

          Dustin B. Pead United States Magistrate Judge

         This case is presently before the court on two motions. First, the court will consider the “Motion for Extension of time to Answer Plaintiff's Discovery” filed by Defendants Cure My Snore, LLC d/b/a American Sleep Union, Rocky Burgess, Jason S. Ashworth, and the Jason S. Ashworth Asset Protection Trust dated January 29, 2015 (collectively “ASU Defendants”). (ECF No. 70.) ASU Defendants labeled this motion ex parte, but cite no authority to suggest ex parte treatment is appropriate for such a motion. Fortunately, Plaintiff mitigated potential prejudice by filing an opposition to the motion, which the court will consider. (ECF No. 73.)

         Second, the court considers Plaintiff's “Motion to Compel Production of Documents and Answers to Interrogatories and for Sanctions, ” seeking to compel discovery responses from ASU Defendants. (ECF No. 83.) Plaintiff also seeks sanctions for ASU Defendants' failure to timely respond to the discovery requests at issue. (Id.) Subsequent to the present motion, ASU Defendants provided discovery responses, though Plaintiff claims that ASU Defendants' production remains incomplete. (See ECF Nos. 62; 86; 92; 96; 103.) Given the importance of certain background facts to Plaintiff's motion to compel, the court will first turn to the factual history of Plaintiff's discovery attempts.

         I. Background

         Prior to the present motion, Plaintiff filed a motion to compel initial disclosures from the ASU Defendants. (ECF No. 60.) In response to that motion, ASU Defendants' counsel, M r. Farris, claimed that he did not see a letter requesting his clients provide initial disclosures. He admits the letter was sitting unread in his email. (ECF No. 61, Ex. 1.) ASU Defendants made their initial disclosures after the motion to compel was filed. (ECF No. 62.)

         On August 26, 2016, Plaintiff served his first set of discovery requests. (ECF No. 83 at 4 & Ex. 1.) On September 12, 2016, Plaintiff filed his first set of discovery requests with the court, as an exhibit to his opposition to a motion to amend counterclaims. (ECF No. 66, Ex. 1.) Mr. Farris claims he first became aware of these requests on September 29, 2016, when he noticed codefendants filed, the day before, a motion to extend time to answer the requests. (ECF No. 70, Ex. 1.) On September 30, 2016, ASU Defendants filed their own motion seeking to extend the then-expired deadline for answering the requests. (ECF No. 70.) In the motion, Mr. Farris once again states that he failed to review an email that he admits he received. (Id.) His explanation is nearly identical to one given contained in ASU Defendants' opposition to Plaintiff's motion to compel initial disclosures, previously discussed. (See ECF No. 61, Ex. 1.)

         On October 6, 2016, the court entered an Order addressing the tardy initial disclosures. The court ordered “that Mr. Farris comply with all obligations and deadlines in this case” and further warned that “[i]f Mr. Farris fails to comply with court deadlines or fails to respond to counsel's efforts to contact him, he, and his client, may be sanctioned.” (ECF No. 77.) On October 7, 2016, ASU Defendants served Plaintiff with responses to his requests for admission. (ECF No. 83 at 5.) During a mandatory conference on October 17, 2016, Mr. Farris disclosed to opposing counsel that he was travelling in Africa. Mr. Farris acknowledged that his clients' discovery responses had not been provided, but promised to work with his staff in Utah to ensure they were provided by October 21, 2016. (ECF No. 83 at 6.) No responses were provided on October 21. Instead, Mr. Farris's assistant emailed Plaintiff's counsel stating that Mr. Farris was experiencing technical difficulties and would provide the promised responses in three days. (Id. at 7)

         Beginning on October 25, 2016, Plaintiff's counsel made additional efforts via telephone and email to contact Mr. Farris and his staff, but received no response. (ECF No. 83 at 7-8.) Finally, on November 2, 2016, a member of Mr. Farris's staff contacted Plaintiff's counsel promising discovery responses the following day. (Id. at 8.) On November 3, 2016, ASU Defendants provided their responses, but the materials produced did not contain responses to a number of requests, and lacked verification for the interrogatory responses. (ECF No. 83, Ex. 14.) Plaintiff's counsel immediately attempted to contact Mr. Farris about the deficiencies and made repeated attempts over several days to contact Mr. Farris to address the deficiencies. (ECF No. 83 at 9- 11.) M r. Fa rris did not respond to these efforts until November 10, 2016, when he emailed Plaintiff's counsel to arrange a time for a telephone conference on November 11. (Id. at 11.) During the telephone conference, Mr. Farris promised to have discovery responses by 10:00 a.m. on November 15, 2016. (Id. at 12.) Plaintiff's counsel indicated they would file a motion to compel if they did not receive the discovery responses by that time. (Id.)

         At 9:30 a.m. on November 15, 2016, Mr. Farris emailed Plaintiff's counsel and indicated the discovery responses would be delayed until possibly 1:00 p.m. (Id.) After some discussion, Plaintiff's counsel agreed to wait until 1:00 p.m. to file the motion to compel. Mr. Farris did not provide responses by the 1:00 p.m. deadline. (Id. at 13.) Accordingly, at 1:36 p.m. on November 15, 2016, Plaintiff filed the present motion to compel responses to his interrogatories and requests for production of documents, first served in late August. (ECF No. 83.)

         Given the delay evident in the record, the court entered several interim orders regarding production. First, the court instructed Mr. Farris to respond with any reason his clients should not have been immediately compelled to provide the information sought in this motion. (ECF No. 84.) Mr. Farris responded timely to the court's order indicating that ASU Defendants provided responsive information on November 15, after Plaintiff filed his motion to compel. (ECF No. 86.) ASU Defendants did not argue the information was not subject to discovery. On December 1, ASU Defendants filed a formal opposition to the present motion to compel, setting forth a chronology of the disputed discovery requests and attempts to provide responses. (ECF No. 92.) To his credit, Mr. Farris accepts responsibility in this filing for the delay in providing discovery responses. (ECF No. 92 at 7-11.) ASU Defendants again did not argue that the information should not be produced for any reason.

         The following day, Plaintiff filed a supplemental brief (at the court's invitation) indicating that certain materials still had not been provided in the November 15 production. (ECF No. 96.) The court granted Plaintiff's request to immediately compel production of documents responsive to document request number five. (ECF no. 97.) ASU Defendants filed a notice indicating they had complied with the court's order. (ECF No. 99.)

         On December 15, Plaintiff filed his reply in which argues that he is entitled to recover his expenses for bringing the motion, including attorney's fees. (ECF No. 103.) Likewise, Plaintiff argues that, despite all efforts, ASU Defendants have still failed to answer certain requests and provided an incomplete answer to at least one request.

         II. Analysis of ASU Defendants' motion for extension of time

         As mentioned above, ASU Defendants filed on September 30, 2016, a motion seeking to extend the then-expired deadline for answering the discovery requests by seven days. (ECF No. 70.) During this seven-day window, ASU Defendants provided only responses to Plaintiff's requests for admission. ASU Defendants did not provide any further documents or interrogatory responses. Thus, the motion is moot with regard to interrogatory responses and document production because ASU Defendants missed even their proposed extended deadline. The court thus examines only whether the ...


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