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Gropper v. David Ellis Real Estate, LP

United States District Court, S.D. New York

February 10, 2014

DAN GROPPER, Plaintiff,
v.
DAVID ELLIS REAL ESTATE, L.P. and 31 UNION SQUARE WEST, LLC, d/b/a BLUE WATER GRILL, Defendants.

MEMORANDUM AND ORDER

JAMES C. FRANCIS, IV, Magistrate Judge.

The plaintiff, Dan Gropper, brings this action alleging that the Blue Water Grill, a Manhattan restaurant, violated his rights because it does not meet the accessibility requirements of the Americans With Disabilities Act, 42 U.S.C. ยง 12181 et seq., and related state and city laws. Mr. Gropper now moves pursuant to Rule 37 of the Federal Rules of Civil Procedure for an order compelling discovery responses and awarding sanctions. The defendants have cross-moved for sanctions.

Background

The plaintiff filed his complaint on March 28, 2013. Before discovery commenced, the defendants moved to stay the action on the ground that the accessibility of the Blue Water Grill was the subject of a parallel investigation by the United States Department of Justice. In a Memorandum and Order dated July 29, 2013, I denied the motion, though I encouraged plaintiff's counsel to consider agreeing to a voluntary stay. He did not take up my suggestion, and on August 27, 2013, he propounded interrogatories and document requests. (Plaintiff's First Request for Documents ("Pl. Doc. Req."), attached as Exh. B to Declaration of Glen H. Parker dated Nov. 26, 2013 ("Parker Decl."); Plaintiff's First Set of Interrogatories ("Pl. Interrogs."), attached as Exh. C to Parker Decl.).

In a series of e-mail communications on September 19, 2013, counsel for the respective parties discussed the fact that responses to the discovery requests were due on September 27, 2013. (E-mails of Glen Parker and Ernest E. Badway dated Sept. 19, 2013, attached as part of Exh. D to Parker Decl.). When plaintiff's counsel did not receive the responses on time, he sent e-mails on October 4, October 8, and October 10, seeking to obtain them. (Emails of Glen Parker dated Oct. 4, 2013, Oct. 8, 2013, and Oct. 10, 2013, attached as part of Exh. D to Parker Decl.). On October 10, defendants' counsel indicated that they had objections to many of the requests and also advised that one of the persons responsible for providing the requested information had experienced a family tragedy. (E-mail of Carolyn Richmond dated Oct. 10, 2013, attached as part of Exh. D to Parker Decl.). When plaintiff's counsel offered to agree to a schedule (E-mail of Glen Parker dated Oct. 10, 2013, attached as part of Exh. D to Parker Decl.), defendants' counsel requested an additional three weeks (E-mail of Ernest E. Badway dated Oct. 10, 2013, attached as part of Exh. D to Parker Decl.). Accordingly, counsel entered into a written stipulation pursuant to which the defendants were to respond to the outstanding discovery requests by November 1, 2013. (Stipulation dated Oct. 11, 2103, attached as Exh. E to Parker Decl.).

When plaintiff's counsel did not receive responses on November 1, he e-mailed defendants' counsel on November 4, asking if they had been sent. (E-mail of Glen Parker dated Nov. 4, 2013, attached as part of Exh. D to Parker Decl.). Defendants' counsel replied that they had the deadline "calendared as November 18, 2013." (Email of Ernest E. Badway dated Nov. 4, 2013, attached as part of Exh. D to Parker Decl.). Nonetheless, on November 6, the defendants provided their responses to the plaintiff's discovery demands.[1] (Defendants' Responses to Plaintiff's First Request for Documents ("Def. Doc. Resp."), attached as Exh. G to Parker Decl.). Considering the responses inadequate, plaintiff's counsel sent a deficiency letter to defendants' counsel on November 8 and, when he received no response, sent a letter to the Court on November 13 asking for a conference. (Letter of Glen H. Parker dated Nov. 13, 2013 "Parker 11/13/13 Letter")). On November 18, defendants' counsel requested reconsideration of my order denying a stay of this action, and I denied that application the following day. (Letter of Ernest E. Badway dated Nov. 18, 2013; Memorandum Endorsement dated Nov. 19, 2013). Also on November 19, I addressed the request of plaintiff's counsel for a conference; I indicated he should file a formal motion and observed that attorneys' fees would likely be assessed against any party whose position was not substantially justified. (Memorandum Endorsement dated Nov. 19, 2013).

The plaintiff filed the instant motion on November 26, 2013. He contends that the defendants waived any objections to the requested discovery by failing to provide responses in a timely fashion. (Plaintiff's Memorandum of Law in Support of Motion to Compel and for Fees ("Pl. Memo.") at 2-3). The plaintiff further argues that the defendants' objections were improper and that their responses, once they were provided, were incomplete and evasive. (Pl. Memo. at 3-10). He notes that the defendants have asserted privilege but provided no privilege log and that they failed to verify their interrogatory answers. (Pl. Memo. at 10). The plaintiff seeks an award of attorneys' fees in connection with his motion. (Pl. Memo. at 11).

The defendants answered the motion on December 10, 2013, arguing that the plaintiff had failed to comply with the obligation to meet and confer prior to filing his motion. (Defendants' Memorandum of Law in Opposition to Plaintiff's Motion to Compel and for Fees and in Support of Defendants' Cross-Motion for Sanctions ("Def. Memo.") at 3, 5-6). The defendants point out that they had provided responses to the document requests and interrogatories and note that they possess additional documents that they intended to produce. (Def. Memo. at 4). They also argue that the plaintiff has "unclean hands" because he did not provide information responsive to the defendants' discovery requests. (Def. Memo. at 6-7). Finally, the defendants cross-move for an award of the attorneys' fees incurred in opposing the plaintiff's motion.

Discussion

A. Meet and Confer Obligations

A motion to compel discovery "must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action." Fed.R.Civ.P. 37(a)(1). Here, the plaintiff satisfied that requirement with respect to efforts to obtain discovery responses in the first place. As described above, plaintiff's counsel repeatedly reminded his adversary of the defendants' obligation to produce the requested documents and interrogatory answers, and defendants' counsel was generally non-responsive. Even when counsel agreed on a formal extension of the deadline, the defendant did not comply with it.

A failure to meet and confer may be excused when to do so would be futile. See Gibbons v. Smith, No. 01 Civ. 1224 , 2010 WL 582354, at *2 (S.D.N.Y. Feb. 11, 2010); Metrokane, Inc. v. Built NY, Inc., No. 06 Civ. 14447 , 2008 WL 4185865, at *3 (S.D.N.Y. Sept. 3, 2008); Myers v. Andzel, No. 06 Civ. 14420, 2007 WL 3256865, at *1 (S.D.N.Y. Oct. 15, 2007). Of course, futility should not be lightly presumed. But where, as here, a party has tried over an extended period of time to obtain full compliance with discovery demands and has received no firm commitment, it has no obligation to continue negotiations that seemingly have no end. See Bell v. Lockheed Martin Corp., Civ. No. 08-6292, 2012 WL 1677240, at *1 (D.N.J. May 14, 2012); Bristol-Myers Squibb Co. v. Rhone-Poulenc Rorer, Inc., No. 95 Civ. 8833 , 1998 WL 2829, at *3 (S.D.N.Y. Jan. 6, 1998).

Fleisher v. Phoenix Life Insurance Co., No. 11 Civ. 8405, 2012 WL 6732905, at *2 (S.D.N.Y. Dec. 27, 2012).

Whether the parties have exhausted their meet and confer obligations with respect to the substance of the defendants' responses is a good deal less clear. Plaintiff's counsel asserts that on November 8, 2013, two days after receiving the defendants' responses, he sent a deficiency letter to defendants' counsel. (Parker 11/13/13 Letter at 1). However, that letter has not been submitted to the court, so it is unclear if a meaningful effort was made to resolve any disagreements. Indeed, as will be ...


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