TERESA J. JAMES, District Judge.
The Court has before it Plaintiff's Motion to Strike Defendant Cyprus Mediterranean Amalgamated, LLC and Howard S. Flint Jr.'s Answer and Bar Defenses for Failure to Comply with Court's February 7, 2014 Order and Renewed Motion for Sanctions and to Compel Answers to Deposition Questions (ECF No. 79) (the "Motion to Strike"). Plaintiff requests an order:
The deadline to respond to the Motion to Strike ran on March 5, 2014. To date, there has been no response filed by any Defendant to the motion. On March 12, 2014, CMA's counsel filed a Motion to Stay Ruling on Plaintiff's Motion to Strike (ECF No. 82), which the Court will address in a separate order. The Court is ready to rule on the Motion to Strike. Upon review, the Court concludes that the Motion to Strike should be granted in part and denied in part.
Plaintiff seeks an order striking the answers of Flint Jr. and CMA and barring them from supporting their defenses, for their failure to comply with the Court's February 7, 2014 order to respond to written discovery. Fed. R. Civ. P. 37(b)(2)(A) provides for a variety of sanctions for failing to obey an order to provide or permit discovery. Sanctions may include prohibiting claims or defenses, striking pleadings, and default judgment.
The discovery at issue, Plaintiff's First Sets of Requests for Admissions, Interrogatories, and Requests for Production of Documents, were served on Flint Jr. and CMA on June 24, 2013. Although Plaintiff agreed to several extensions of time for them to respond, when Flint Jr. and CMA had still not responded to Plaintiff's discovery by December 16, 2013, Plaintiff moved to compel their responses.
Nearly a month has passed since the February 14, 2014 deadline imposed by the Court, however the Court finds that Flint Jr. and CMA have failed to respond to Plaintiff's written discovery requests despite being ordered to do so, and despite repeated attempts by Plaintiff to elicit responses. Further, Flint Jr. and CMA's failure to respond has potential adverse effects on Plaintiff's ability to pursue its claims against the other Defendants in this action, as well its claims against Flint Jr. and CMA. As a result, the Court concludes that sanctions should be imposed. At this time, however, the Court declines to impose the harsh sanctions of striking the answers and barring the defenses of Flint Jr. and CMA.
Instead, pursuant to Rules 37(b)(2)(C) and 37(d)(3), the Court will order Flint Jr. and CMA to pay the expenses caused by their failure to timely respond to the written discovery, as set out in the following Section B, titled "Request for an Award of Reasonable Expenses." The Court will also order them to serve complete, substantive, and good-faith answers to Plaintiff's First Sets of Interrogatories and Requests for Production of Documents, on or before March 26, 2014. Further, pursuant to Rule 36(a)(3), all matters contained in Plaintiff's First Set of Requests for Admissions are deemed admitted as a result of Flint Jr. and CMA's failure to respond. In addition, pursuant to Rules 37(b)(2)(A)(ii) and (iii) and D. Kan. Rules 11.1(b)(2) and (3), should either Flint Jr. or CMA fail to serve their responses as ordered, then upon the filing by Plaintiff of a notice certifying such failure and a finding by the Court of noncompliance, the noncompliant party or parties' answer(s) shall be stricken and the party's or parties' defenses shall be barred.
Instead of or in addition to the sanctions provided in Rule 37(b)(2)(A) for failing to obey an order to provide or permit discovery, "the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure unless the failure was substantially justified or other circumstances make an award of expenses unjust."
As the Motion to Strike is uncontested, the Court finds no substantial justification for Flint Jr. and CMA's failure to obey the Court's February 7, 2014 Order, nor any other circumstances making an award of expenses unjust. The Court therefore will award Plaintiff its reasonable expenses in making the Motion to Strike, including reasonable attorneys' fees approved by the Court. To aid the Court in determining the proper amount of expenses and attorneys' fees to award, Plaintiff's counsel shall file, on or before March 24, 2014, an affidavit itemizing the expenses, including attorney's fees, incurred by Plaintiff in making the motion. Flint Jr., proceeding pro se, and counsel for CMA shall have until April 7, 2014 to file a response to the affidavit, if any.
Plaintiff alleges that Flint Jr. refused to answer the majority of questions asked by Plaintiff's counsel at Flint Jr.'s deposition on December 17, 2013. Thus, Plaintiff has refiled its request for an order compelling Flint Jr. to respond to Plaintiff's deposition questions at a redeposition, with all of the costs of attendance at Flint Jr.'s expense. Plaintiff's original request was denied without prejudice for failing to include certification of any effort by Plaintiff to confer with Flint Jr. in an effort to resolve their dispute.
Defendant Howard S. Flint Sr. served his notice to depose Flint Jr. pursuant to Fed. R. Civ. P. 30(b)(6) on December 17, 2013 at 10:00 a.m.
First, regarding the duty to confer, Rule 37(a)(1) requires that a party moving to compel discovery include in its motion a certification that the movant has in good faith conferred or attempted to confer with the party in an effort to secure the discovery without court action. Similarly, D. Kan. Rule 37.2 provides that "[t]he Court will not entertain any motion to resolve a discovery dispute pursuant to Fed. R. Civ. P. 26 through 37 . . . unless counsel for the moving party has conferred or has made reasonable effort to confer with opposing counsel concerning the matter in dispute prior to the filing of the motion." A "reasonable effort to confer" means more than mailing, faxing, or emailing a single letter to the opposing party; "[i]t requires that the parties in good faith converse, confer, compare views, consult, and deliberate, or in good faith attempt to do so."
Plaintiff has included a certification of its good faith attempt to confer with Flint Jr. in an effort to resolve the discovery issues related to a redeposition. Specifically, Plaintiff's counsel sent three emails to Flint Jr., on February 7, 10, and 12, 2014, in an effort to set up a conference call to schedule a redeposition pursuant to the Court's order. On February 18, 2014, following Flint Jr.'s failure to respond to any of the prior emails, Plaintiff's counsel sent a final email to Flint Jr. in an attempt to reschedule the deposition. Upon receiving no response to the final email, Plaintiff filed the instant motion.
Pursuant to Fed. R. Civ. P. 37(a)(3)(B)(i), a party seeking discovery may move for an order compelling an answer if a deponent fails to answer a question asked at oral deposition. Flint Jr. has not presented any valid legal bases for his refusal to answer Plaintiff's questions. The rules applicable to depositions are clear. A witness may state an objection, which will be noted on the record, but the witness must then answer the question.
