ALLISON CLAIRE, Magistrate Judge.
This matter is before the court on plaintiffs' motion for discovery. ECF No. 17. Defendant has not submitted a response. Pursuant to the court's prior orders, ECF Nos. 18 and 19, defendant's lack of response is now construed as non-opposition to plaintiffs' motion. Based on a review of all papers filed, the court GRANTS plaintiffs' motion. Defendant is ORDERED to submit complete responses to plaintiffs' requests for production, deposition notice, and interrogatories within ten (10) days of this order. Plaintiffs' requests for admission are each deemed admitted. Further, because plaintiffs brought a meritorious motion to compel and because defendant and defense counsel have behaved egregiously in this matter, the court GRANTS plaintiffs' request for attorneys' fees and costs. Additionally, upon review of the record, the court is concerned with defense counsel's actions (or lack thereof) in this case and sua sponte issues an order to show cause why additional sanctions should not be issued. Defense counsel has 10 days from the date of this order to show cause as to why sanctions should not issue.
This case was filed on August 17, 2017. ECF No. 1. An amended complaint was filed on August 23, 2017. ECF No. 5. Defendant timely answered on September 21, 2017. ECF No. 12. The answer was signed and filed by defense counsel Margaret G. Foley.
A pretrial scheduling order was issued by the district judge on November 1, 2017. ECF No. 16. The order set a discovery deadline of March 30, 2018.
Plaintiffs move to compel responses to their propounded requests for production, interrogatories, requests for admission, and production of a witness for pursuant to their Fed. R. Civ. P. 30(b)(6) deposition notice. ECF No. 17 at 8. Plaintiffs also request that the court deem plaintiffs' requests for admissions to be admitted.
"Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense. . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). Federal Rules 33 and 34 provide that discovery requests must be responded to within 30 (or in some cases 45) days.
Plaintiffs served their discovery requests and 30(b)(6) deposition notice upon defendant on October 19, 2017. The deposition was noticed for November 30, 2017. Defendant's responses to discovery were due by November 20, 2017. Fed. R. Civ. P. 6(a). Plaintiffs' motion reproduces the text of what is represented to be an e-mail sent by plaintiffs to defense counsel on November 22, 2017. ECF No. 17 at 2. The e-mail notes that defendant's discovery responses are overdue, and inquires about the production of a 30(b)(6) witness.
According to plaintiffs' undisputed representations, no discovery responses have been produced by defendant and no corporate representative witness was produced for the 30(b)(6) deposition. ECF No. 17 at 3.
Defendant's complete and total failure to respond to discovery requests plainly violates the Federal Rules of Civil Procedure. In light of this failure, plaintiff is excused from the meet-and-confer and Joint Statement requirements that otherwise apply to a motion to compel.
Rule 37 sanctions are appropriate in this case because defendant has completely abandoned its responsibly to participate in discovery. Federal Rule of Civil Procedure 37(a)(5)(A) provides that attorneys' fees and costs are to be awarded to the successful movant in a Rule 37 motion.
The appropriate method for computing fees in this case is the lodestar approach, in which the court multiplies the number of hours reasonably expended on the litigation by a reasonable hourly rate.
While plaintiffs are entitled to recover fees and costs, plaintiffs have not submitted the documentation of counsel's hourly rate, hours billed, and costs necessary for the court to make the appropriate fee and cost determination. Plaintiffs' counsel must submit this documentation within 10 days of this order. The court will issue a separate order regarding fees and costs.
The request for admission submitted in plaintiffs' unanswered requests for admission are deemed admitted. Federal Rule of Civil Procedure 36(a)(3) provides that, when requests for admissions are served, each request is deemed "admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney." "Once a matter has been deemed admitted under Rule 36, even by default, the court may not consider evidence that is inconsistent with the admission."
Although the court will not now impose additional sanctions, defendant is cautioned that under Rule 37(b)(2)(C), if a party fails to obey an order to provide discovery, the court may impose sanction including judgment by default against the disobedient party.
The undersigned raises the following issue sua sponte. It appears to the court that Ms. Margaret Grace Foley may have failed to perform legal services competently and may have abandoned her client in violation of her ethical duties and her duty to this court.
For the reasons explained above, it is hereby ordered as follows:
IT IS SO ORDERED.