CHICAGO TRIBUNE COMPANY, LLC, a Delaware limited liability company, Plaintiff,
MASTERPIECE MARKETING GROUP, LLC, a Kansas limited liability company, Defendant.
MEMORANDUM & ORDER
HON. KENNETH G. GALE U.S. MAGISTRATE JUDGE
Now before the Court is Plaintiff’s Motion to Compel seeking financial statements from 2009 to the present, general ledger from 2008 to the present, and tax returns from 2008 through 2012 in response to Plaintiff’s Requests for Production Nos. 34, 35, and 36. (See Doc. 37, at 3.) Defendant has made no response to the substance of Plaintiff’s motion and the Court finds Defendant’s procedural arguments to be unpersuasive. Plaintiff’s motion is, therefore, GRANTED.
Defendant has also filed its “Motion for Leave to Add an Additional Party, File a Third party Complaint, File an Amended Answer and File an Amended Counterclaim.” (Doc. 39.) This motion is also GRANTED.
Plaintiff brings this action seeking damages for breach of contract under an agreement between the parties for Defendant to market and sell certain original photographs owned by Plaintiff. (See generally Doc. 1.) Plaintiff alleges that Defendant failed to pay royalties on photographs sold and failed to return photographs. (Id.) Plaintiff also brings a claim for conversion. Defendant filed a counterclaim alleging in relevant part that Plaintiff failed to provide the necessary number of photographs, resulting in damages to Defendant of $7.9 million to $18.75 million. (See Doc. 7, at 4, et seq.)
Defendant’s responses to the discovery requests at issue were served on September 30, 2013, which included voluminous documents. (Doc. 26.) After reviewing the written responses and documents produced, Plaintiff sent a “golden rule” letter on October 24, 2013, including a deadline of October 31, 2013, for Defendant to respond. The parties also exchanged email and engaged in telephone conversations regarding these discovery issues. Plaintiff then scheduled a pre-motion conference with the undersigned Magistrate Judge in an effort to resolve these issues without filing a motion. The conference occurred on November 25, 2013, but was unsuccessful.
The Scheduling Order agreed upon by the parties in this matter included a deadline to join additional parties or to otherwise amend the pleadings within 30 days after a ruling on pending motions to dismiss. (Doc. 18, at 6.) The District Court entered its Memorandum & Order (Doc. 33) denying Defendant’s Motion to Dismiss Count II of Plaintiff’s Complaint on November 15, 2013. Defendant filed the present motion (Doc. 39) on December 15, 2013. Plaintiff does not oppose Defendant’s request to amend its Answer. (See Doc. 44.) Plaintiff “only opposes [Defendant’s] request to add Image Fortress Corporation (“Image Fortress”) as a third-party defendant and file its proposed third-party complaint against Image Fortress.” (Id.)
I. Motion to Compel (Doc. 37).
Defendant argues that the present motion should be denied because Plaintiff did not comply with D. Kan. Rules 37.1 and 37.2. Pursuant to D. Kan. Rule 37.1(b),
[a]ny motion to compel discovery in compliance with Kan. Rules 7.1 and 37.2 must be filed and served within 30 days of the default or service of the response, answer, or objection that is the subject of the motion, unless the court extends the time for filing such motion for good cause. Otherwise, the objection to the default, response, answer or objection is waived.
D. Kan. Rule 37.2 states in relevant part that
[t]he court will not entertain any motion to resolve a discovery dispute pursuant to Fed.R.Civ.P. 26 through 37, . . . unless the attorney 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. Every certification required by Fed.R.Civ.P. 26(c) and 37 and this rule related to the efforts of the parties to resolve discovery or disclosure disputes must describe with particularity the steps taken by all attorney to resolve the issues in dispute.
A “reasonable effort to confer” means more than mailing or faxing a letter to the opposing party, It requires that the parties in good faith converse, confer, compare views, consult ...