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RBS Holdings, Inc. v. Gordon & Ferguson

June 4, 2007

RBS HOLDINGS, INC., FORMERLY KNOWN AS GORDON & FERGUSON OF DELAWARE, INC., PLAINTIFF,
v.
GORDON & FERGUSON, INC., DEFENDANT.



The opinion of the court was delivered by: Kevin Nathaniel Fox United States Magistrate Judge

MEMORANDUM & ORDER

I. INTRODUCTION

The plaintiff, RBS Holdings, Inc. ("RBS"), has made a motion, pursuant to Fed. R. Civ. P. 37, for an order compelling the defendant to comply with its discovery obligations and awarding it the attorney's fees and costs RBS has incurred in bringing the instant motion. The defendant, Gordon & Ferguson, Inc. ("GFI"), opposes the plaintiff's motion and has made a cross-motion for an extension of the time allotted to it to respond to the plaintiff's discovery demands.

RBS contends the defendant failed to: (1) provide it the information required to be disclosed by Fed. R. Civ. P. 26(a); (2) respond to RBS' document requests; and (3) respond to interrogatories served on GFI by the plaintiff. RBS has requested that the Court direct GFI to:

(a) disclose information in accordance with Fed. R. Civ. P. 26(a); and (b) respond to the plaintiff's discovery demands.

The defendant opposes the plaintiff's motion. GFI contends it did not respond to the plaintiff's discovery demands timely because of "confusion" about which law firm it would designate to provide legal services to it in this litigation. Since that matter is now resolved, GFI has made a cross-motion for an extension of time to respond to the outstanding discovery demands, which are the subject of the plaintiff's motion.

II. BACKGROUND

RBS served GFI with its first set of interrogatories and document requests on January 23, 2007. The defendant failed to respond to the plaintiff's discovery demands within the time specified in Fed. R. Civ. P. 33(b)(3) and 34(b). GFI also failed to meet its Fed. R. Civ. P. 26(a) disclosure requirements timely.

On February 27, 2007, counsel to the plaintiff, wrote a letter to counsel to the defendant, informing him that the plaintiff would seek judicial intervention if GFI did not respond to RBS' outstanding discovery demands. GFI's counsel did not respond to that letter. Thereafter, the plaintiff made an application to the assigned district judge for a 90-day extension of the time previously set for the parties to complete their pretrial activities. The plaintiff's request was granted.

On March 23, 2007, RBS's counsel sent his adversary another letter regarding GFI's failure to respond to the plaintiff's outstanding discovery demands. In a letter dated March 30, 2007, GFI's counsel advised RBS's counsel that the defendant's responses to the plaintiff's discovery demands would be sent to the plaintiff on or before April 2, 2007.

When RBS failed to receive responses to its discovery demands on April 2, 2007, it requested a pre-motion conference with the assigned district judge, in accordance with Local Civil Rule 37.2 of this court, so that the matter could be addressed. The defendant failed to respond to the plaintiff's request for a pre-motion conference. Therefore, the assigned district judge authorized the plaintiff to file the instant motion to compel. After RBS filed its motion, the defendant opposed it through its cross-motion. Attached to GFI's cross-motion are the disclosures required by Fed. R. Civ. P. 26(a) and its responses to the plaintiff's discovery demands.

III. DISCUSSION

Since GFI has responded to RBS's interrogatories and its request for documents, and, furthermore, inasmuch as GFI has made the disclosures required by Fed. R. Civ. P. 26(a), the plaintiff's request for an order compelling the defendant to respond to the plaintiff's discovery demands, and the defendant's cross-motion for an extension of time to serve its responses thereto, are moot. Accordingly, the only matter that remains for the Court to address is RBS's request for an award of the reasonable attorney's fees and costs it incurred in making the motion to compel the defendant to respond to the plaintiff's discovery demands.

If a party fails to make the disclosures required by Fed. R. Civ. P. 26(a), any other party may move to compel disclosure and for appropriate sanctions. See Fed. R. Civ. P. 37(a)(2)(A). The same is true when a party fails to answer interrogatories or respond ...


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