United States District Court, D. Kansas
MEMORANDUM AND ORDER DENYING MOTION FOR
SANCTIONS
KENNETH G. GALE United States Magistrate Judge.
Before
the Court is Plaintiff's “Motion for an Order
Holding Defendants in Contempt for Non-Compliance with the
Court's Order of November 28, 2016 and Granting
Appropriate Sanctions.” (Doc. 172.) Having reviewed the
submissions of the parties, the Court DENIES without
prejudice Plaintiff's motion.
BACKGROUND
Judgment
was entered by the Court in August, 2015 in favor of
Plaintiff following a trial on the matter in July, 2015.
(Doc. 155). Defendants have since filed a Motion for a New
Trial, or in the Alternative, Motion to Amend the Judgment
and Remittitur of the Punitive Damage Award. (Doc. 159.) That
motion was recently denied by the District Court. (Doc. 176.)
The
Order in question (Doc. 170) resulted from Plaintiff's
Motion to Compel (Doc. 166) responses to discovery requests
in aid of execution.[1] In opposing that motion, Defendants argued
that because their post-trial motion remained pending at the
time, the discovery is premature and that “judicial
economy is not served by conducting discovery in aid of
execution of a judgment before that judgment becomes
final.” (Doc. 168, at 1.) Defendants also
“move[d] this court for a stay of discovery and
execution” pending the District Court's ruling on
the pending motion. (Id., at 2.)
Citing
subsection (b) of Fed.R.Civ.P. 62, which states that a court
may stay the execution of a judgment or any proceedings to
enforce it when a motion for a new trial or to amend a
judgment is pending, this Court granted Plaintiff's
underlying motion to compel. (Doc. 170, at 2.) The
Court's opinion was based on the fact that Defendants
failed to offer a proposal to provide for “appropriate
security, ” as required by the Rule. (Id.)
DISCUSSION
Plaintiff
brings the present motion, arguing that Defendants'
responses to the discovery in aid of execution were
insufficient. (Doc. 172.) More specifically, Plaintiff
contends that “[D]efendants refused to answer many of
the interrogatories and refused to produce any of the
requested documents with the exception of” a single
Asset Purchase Agreement. (Id., at 2.) Plaintiff
argues that the information is necessary so that she may
“proceed with identifying assets that may satisfy the
judgment herein; a simple recitation that [D]efendants have
no assets does not satisfy this inquiry.”
(Id.) Plaintiff continues that “[t]he
requested discovery will shed light on whether [D]efendants
have divested or hidden assets.” (Id.)
Defendants
respond that the motion is “premature” because
Plaintiff failed to confer “as is required by D. Kan.
Rule 37.1.” (Doc. 174, at 1.) The Court surmises that
Defendants meant to cite D. Kan. Rule 37.2, which states that
a court “will not entertain any motion to resolve a
discovery dispute . . . unless the attorney for the moving
party has conferred or made reasonable effort to confer with
opposing counsel concerning the matter in dispute prior to
the filing of the motion.” (Emphasis added.) In her
reply memorandum, Plaintiff does not controvert
Defendants' assertion regarding her failure to comply
with this local rule.
Defendants'
response offers to provide additional information if given
the opportunity to speak to Plaintiff's counsel regarding
certain concerns. (Doc. 174, at 2.) Because Plaintiff did not
confer as required by D. Kan. Rule 37.1, the Court DENIES the
present motion, without prejudice, and instructs the parties
to engage in a substantive and meaningful attempt to resolve
the issues contained in the pending motion.
“Failure
to confer or attempt to confer may result in unnecessary
motions. When the court must resolve a dispute the parties
themselves could have resolved, it must needlessly expend
resources it could better utilize elsewhere.” Banks
v. St. Francis Health Ctr., Inc., 2015 WL 7451174, *2
(D. Kan. Nov. 23, 2015) (citation omitted). A
“[r]easonable effort to confer requires that the
parties in good faith converse, confer, compare views,
consult and deliberate, or in good faith attempt to do
so.” Blair v. Transam Trucking,
09-2443-EFM-KGG, 2016 WL 7117182, at *6 (D. Kan. Dec. 7,
2016) (citation omitted).
The conference mandate of ‘reasonable efforts to
confer' requires ‘more than mailing or faxing a
letter to the opposing party.' D. Kan. Rule. 37.2. It
follows, then, that the rule also requires more than
exchanging e-mail. Rather, the parties must ‘in good
faith converse, confer, compare views, and consult and
deliberate or in good faith attempt to do so.'
‘[The parties] must make genuine efforts to resolve the
dispute by determining precisely what the requesting party is
actually seeking; what responsive documents or information
the discovery party is reasonably capable of producing, and
what specific, genuine objections or other issues, if any,
cannot be resolved without judicial intervention.'
Heglet v. City of Hays, Kan., 2014 WL 2865996, at *2
(D. Kan. June 24, 2014) (internal citations omitted).
Given
the prior Orders in this case, the Court sympathizes with
Plaintiff's concern that Defendants response to this
motion is merely a further attempt at
obstruction.[2] The Court surmises that the procedural
history of this case may have been a large reason why
Plaintiff's counsel chose not to confer with defense
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