Free Motion to Compel - District Court of Delaware - Delaware

Case 1:06-cv-00097-JJF

Document 14

Filed 11/17/2006

Page 1 of 2

DISTRICTCOURT LINITEDSTATES DISTRICTOF DELAWARE

NATIONAL FIRE & MARINE INSIIRANCE COMPANY,
Civil Action No.: 06-97

Plaintiff, -againstINC., ROBIN JAMESCONSTRUCTION, Defendant.

PLAINTIFF'S MOTION TO COMPEL DISCLOSURE AND PRODUCTION OF DOCUMENTS. AND FOR SANCTIONS

NOW COMES Plaintiff, National Fire and Marine Insurancs Company (hereinafter "National Fire"), by and through its counsel Deily, Mooney and Glastetter, LLP, who hereby moves this Court, pursuantto Fed. R. Civ. P.31(a)(2)(A) and 37(a)(2)(B),to compel Defendant Robin James Construction, Inc., to serve its initial disclosures and to produce requested documents,on the grounds that initial disclosures are29 weeks overdue and discovery responses are 18 weeksoverdue. WHEREFORE, on the grounds more fully set forth in the Affidavit of Lisa F. Joslin, plaintiff National Fire requeststhat:
a.

The Court issue an Order compelling defendant to immediately serve its initial disclosures and discovery responses, or in the alternative an Order striking defendant'sAnswer and enteringjudgment in favor of plaintiff; The Court award plaintiff National Fire its reasonable expensesand attorneys' fees incurred in connection with this motion, and in connection with counsel's repeated telephone and written correspondence demanding disclosure and production of documents;and This Court grant any and all such other relief as it may deemjust and proper.

b.

c.

7 41545

Case 1:06-cv-00097-JJF

Document 14

Filed 11/17/2006

Page 2 of 2

Dated: November 17. 2006

bslin,Esq.
Deily, Mooney and Glastetter,LLP Attorneys for Plaintiff National Fire & Marine InsuranceCompany 8 Thurlow Terrace Albany, NY 12203 Tel: (518) 436-0344

s/ Kristi J. Doughtry

Kristi J. Doughtry,Esq.(Local Counsel) Whittington& Aulgur Professional Park,Suite110 Odessa 313North DupontHighway P.O. Box617 DE Odessa. 19730-0617

7 41_545

Case 1:06-cv-00097-JJF

Document 14-2

Filed 11/17/2006

Page 1 of 6

DISTRICTCOURT UNITED STATES DISTRICTOF DELAWARE NATIONAL FIRE & MARINE INSI]RANCE COMPANY, Civil Action No.: 06-97 Plaintiff,
-agamstROBIN JAMES CONSTRUCTION, INC., Defendant.

AFFIDAVIT OF LISA F. JOSLIN IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL DISCLOSUREAND PRODUCTIONOF DOCUMENTS.AND FOR SANCTIONS STATE OF NEW YORK
COLINTY OF ALBANY

)
) )
SS.:

LISA F. JOSLIN, ESQ., being duly sworn,deposes and says: 1. I am associatedwith the law firm Deily, Mooney and Glastetter, LLP, attorneys

for plaintiff National Fire & Marine InsuranceCompany (hereinafter "National Fire"). As such, I am fully familiar with the facts and circumstances this matter. of 2. I make this affidavit in support of plaintiffs motion for an Order pursuant to Fed.

R. Civ. P. 37(a), compelling defendant Robin James Construction, Inc. to serve its initial disclosures requiredby Fed. R. Civ. P. 26(a)(I), and to respondto Plaintiffs First Requestfor as Production of Documentsas required by Fed. R. Civ. P. 34(b). By this motion, plaintiff also

745778

Case 1:06-cv-00097-JJF

Document 14-2

Filed 11/17/2006

Page 2 of 6

seeksthe imposition of appropriatesanctionsas a result of defendant'sblatant and willful refusal to participate in the discovery process. 3. Pursuant to the Court's Rule 16 Scheduling Order, dated April 12, 2006,

defendant was required to serve its initial disclosureson or before upon plaintiff on April 17, 2006. To this date, defendant'sdisclosureshave not been served. A copy of the Court's Rule 16 SchedulingOrder is attached heretoas Exhibit "A". 4. On or about Apil I7, 2006, plaintiff timely served counsel for defendant with

initial disclosures. 5. On June 5,2006, plaintiff servedupon Eric Howard, Esq., attorneyfor defendant,

Plaintiffs First Requestfor Production of Documents. Responses the demandswere due on or to before July 5, 2006. A copy of Plaintiffs First Requestfor Production of Documents is attached heretoas Exhibit "B". 6. 7. Defendanthas neither objectedto theserequestsnor servedany responses thereto. Attached hereto as Exhibit "C" is a compilation of written correspondence

between my office and Attorney Howard, revealing my repeatedattempts to resolve this issue prior to seekingcourt intervention. 8. The documents attached as Exhibits "A" through "C" reveal the following

chronologyofevents: o Pursuantto the Court's schedulingorder, initial disclosureswere due on or before April 17,2006; On May 23,2006,I wrote to attorney Howard requestingthat defendant'spast due initial disclosuresbe forwarded immediately; On June 5, 2006, we served on defendantPlaintiffs First Request for Production of Documents:

o

o

746778

Case 1:06-cv-00097-JJF

Document 14-2

Filed 11/17/2006

Page 3 of 6

On June 5,2006,I wrote to attorney Howard, via facsimile, requestingthat he forward defendant'siniti al disclosuresimmediately; On July 6, 2006,I wrote to attorney Howard inquiring as to when he would be serving his responsesto plaintiffs First Request for Production of Documents, which were then overdue: Per the Court's scheduling order, the parties were required to complete discovery on or beforeAugust 1,2006; On September 18, 2006, per attorney Howard's request, I forwarded a second copy of plaintiffs demandfor production of documentsvia electronic mail. On October 18, 2006, I wrote again to attorney Howard, demanding that defendant's discovery responses be served upon plaintiff, and warning that plaintiff would be forced to move for sanctionsand for summaryjudgment.

9.

tn addition to the above-referenced letters, my file notes and time records reflect

severaltelephone calls to defense counsel,inquiring as to the statusof his client's discovery counsel: responses. following is a summary thetelephone The of callsmadeto defense
o On September 13, 2006,I spoke with attorney Howard and demanded that defendantserve its responses discovery, artdthreateneda motion to compel to production. Mr. Howard assuredme that a motion would not be necessary and that the responses would be forthcoming. On September18,2006,I called attorney Howard regarding his client's failure to serve discovery responses,and failure to serve its initial disclosures. He advised me that he was unable to locate plaintiffs document requests, and asked that a second copy be forwarded via electronic mail. I forwarded a secondcopy of the demandsimmediately after our phone call ended. 26,2006,I spokewith attorneyHoward regardinghis failure to On September respond to plaintiffs discovery demands. Mr. Howard stated that his client did not possessany documents responsive to the request but that he was meeting with his client's agent, Ned Fowler of the Insurance Market, and assuredme that responses would be forwarded by end of businesson Friday, 29,2006; September On October 6, 2006,I left anothervoice mail messagefor attorney Howard demanding that responsesbe served promptly. Mr. Howard never returned this phonecall.

o

746778

Case 1:06-cv-00097-JJF

Document 14-2

Filed 11/17/2006

Page 4 of 6

10.

defendant has Despite my repeatedtelephone calls and written correspondence,

failed to serve its initial disclosures and its responsesto plaintiffs document requests, due to what can be deemednothing other than the defendant'swillful and blatant refusal to participate in discovery. ln fact, defendanthas never ever propounded its own set of discovery demands, the time for which elapsed August 1,2006. on I 1. plaintiff has made repeatedgood faith As reflected by the above correspondence, These efforts were

attempts to resolve these issues prior to seeking court intervention.

unsuccessful. Enclosedherewith is the appropriatecounselcertification of compliance. 12. A party may not properly remain silent, even if he regards a discovery demand as

improper and"/or objectionable (Advisory Committee's explanatory statement concerning amendment the discoveryrules, 48 F.R.D. 487,542 [1970]). The party from whom discovery of is sought is afforded, through Rule 26(c), a fair and effective procedure whereby he can challenge the request made (fu!). At the same time, total non-compliance imposes severe inconvenienceor hardship to the discovering party and substantially delay the discovery process (id.). 13. Plaintiff properly brings this motion in accordancewith Rule 37(a)(2XA) of the

FederalRules of Civil Procedure. 14. Attomey Howard's repeatedfailure to servehis client's initial disclosures,respond

to plaintiffs discovery demands,and to otherwise participate in the discovery processviolates 28 which provides: U.S.C. 51927, Any attorney or other person admitted to conduct casesin any court of the United States or any Territory thereof who so multiplies the proceedingsin any case unreasonablyand vexatiously may be required by the court to satisfy personally the excess costs, expenses,and attomeys' fees reasonablyincurred becauseof such conduct.

745778

Case 1:06-cv-00097-JJF

Document 14-2

Filed 11/17/2006

Page 5 of 6

15.

The willful and blatant refusal by defendant and its counsel to participate in the

discovery process has impeded and delayed plaintiffs effective prosecution of this action, and warrants an imposition of sanctionsagainstthem. 16. Defendant should be compelled to serye immediately its disclosures and

discovery responses. Further, insofar as defendant'sfailure or refusal to participate in discovery cannot under any circumstancesbe substantially justified, plaintiff is entitled to an award of sanctions, including but not limited to, its reasonable expenses and attorneys' fees incurred during plaintiffs repeatedattemptsto obtain disclosuresand discovery responses, and in making this motion. 17. During plaintiffs repeatedattemptsto obtain disclosuresand discovery responses,

National Fire incurred attorneys' fees in the amount of $825.50. In the course of making this motion, National Fire incurred attorneys' fees in the amount of $2,371.00. The total fees incurred as a result of defendant's willful and blatant refusal to participate in discovery is $3,196.50. 18. Plaintiff National Fire hereby requests that the Court enter an Order: (1)

compelling defendant to serve their initial disclosures and to respond to the plaintiffs First Request for Production of Documents; and (2) imposing appropriate sanctions based upon the defendant'scontinued and willful disregardfor the discovery process. 19. Under these circumstances,appropriate sanctions include, but are not limited to:

(1) striking defendant's answer and entering judgment in plaintiffs favor; (2) precluding defendant's evidence at the time of trial; and (3) imposing costs and attorneys' fees against defendantfor repeatedtelephone and written correspondence with attorney Howard, and for the filing of this motion.

746778

Case 1:06-cv-00097-JJF

Document 14-2

Filed 11/17/2006

Page 6 of 6

Dated:November 2006 17.

Deily, Mooney and Glastetter,LLP Attorneys for Plaintiff National Fire & Marine InsuranceCompany

8 ThurlowTerrace Albany, New York 12203 Tel: (518)436-0344 s/ Kristi J. Doughtry Kristi J. Doughtry,Esq.(Local Counsel) Whittington& Aulgur Professional Park,Suite110 Odessa 313North DupontHighway Box617 P.O. DE Odessa, 19730-0617
Sworn to before me this l Tthdav of November.2006

ul,r^- h"*SUSAN FRASIER G. NotaryPublic, Stateof Newyork No.01FR6006421 in County _ Qualified Fulton Commission Expires +,b}rc May

7467'7I

Case 1:06-cv-00097-JJF

Document 14-3

Filed 11/17/2006

Page 1 of 2

LTNITED STATESDISTRICTCOIIRT DISTRICTOF DELAWARE NATIONAL FIRE & MARINE INSURANCE COMPANY. Civil Action No.: 06-97
Plaintiff, -againstROBIN JAMES CONSTRUCTION, INC., Defendant.

CERTIFICATION OF COMPLIANCE WITH MEET AND CONFER REOUIREMENT

I, Lisa F. Joslin, Esq., state that I am the attorney for the moving party in this matter. Prior to filing this motion, I have attemptedto confer in good faith with my opponent, attorney Eric Howard, to resolve this matter without the filing of this motion. In particular, I

correspondedin writing with defense counsel on May 23, 2006, June 5, 2006, July 6, 2006, September 18, 2006 and October 19, 2006, and communicatedby telephone with defense counselon September13, 2006, September18,2006, September 2006 and October6,2006. 26, I certify to the court that thesefacts are true under penalty of perjury, and if called as a witness to testify in this manner, I could and would competently testify to each of these facts.

Dated: November 17. 2006 Lns'6a{Joslin, Esq. (pVohac vice) Deily, Mooney and Glastetter,LLP Attorneys for Plaintiff National Fire & Marine InsuranceCompany 8 Thurlow Terrace Albany, NY 12203 Tel: (518) 436-0344

745969

Case 1:06-cv-00097-JJF

Document 14-3

Filed 11/17/2006

Page 2 of 2

s/ Kristi J. Doughtry Kristi J. Doughtry,Esq.(Local Counsel) Whittington& Aulgur Park.Suite110 Professional Odessa NorthDupontHighway 313 P.O. Box 617 DE Odessa, 19730-0617