Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Equal Rights Center v. Post Properties

October 18, 2007

EQUAL RIGHTS CENTER PLAINTIFF,
v.
POST PROPERTIES, INC., ET AL, DEFENDANTS.



The opinion of the court was delivered by: Alan Kay United States Magistrate Judge

MEMORANDUM OPINION*fn1

Pending before the Court is Defendants' Motion to Compel Discovery [59], Plaintiff's Opposition [61], and Defendants' Reply [62]. Defendants request that the Court order Plaintiff to (1) provide more complete answers in response to Defendants' First Set of Interrogatories, (2) produce additional documents in response to Defendants' First Request for Document Production, and (3) provide a reasonable date for a 30(b)(6) deposition. For the reasons set forth below, Defendants' Motion to Compel Discovery is GRANTED IN PART and DENIED IN PART.

I. Background

On November 21, 2006, Plaintiff Equal Rights Center ("ERC") filed a Complaint alleging that Defendants (collectively "Post") engaged in "ongoing and systematic violations" of the Fair Housing Act ("FHA"), 42 U.S.C. § 3601, et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181, et seq. (Compl. ¶ 2.) Specifically, ERC alleges that Post violated these civil rights statutes in the "design, construction and/or operation of covered multifamily dwellings, including residential complexes" in various states and the District of Columbia. (Id.) ERC, a non-profit organizations focusing on civil rights issues, asserts that it "tested" twenty-seven Post properties and discovered FHA and ADA violations in the properties' construction and design. (Compl.¶¶ 7, 18, 21.)

Fact discovery is currently set to terminate on October 31, 2007. (See Minute Order dated 3/15/07.) In furtherance of discovery, the trial court granted the parties' Consent Motion for a Protective Order on September 24, 2007 [60]. As stated by the parties, the purpose of this order is to "expedite the completion of discovery and reduce the number of discovery disputes" [58-2]. Defendants filed the instant Motion to Compel on September 18, 2007, after the parties requested these confidentiality procedures but before the trial court signed the Protective Order.

II. Discussion

A. Local Civil Rule 7(m) and Federal Rule of Civil Procedure 37(a)(2)(A)

Prior to filing a motion to compel discovery, both the Local Rules of this Court and the Federal Rules of Civil Procedure impose upon the moving party a duty to confer with opposing counsel and make a good faith effort to resolve the dispute without judicial intervention. Specifically, the Local Rules provide:

Before filing any nondispositive motion in a civil action, counsel shall discuss the anticipated motion with opposing counsel, either in person or by telephone, in a good faith effort to determine whether there is any opposition to the relief sought and, if there is opposition, to narrow the areas of disagreement . . . A party shall include in its motion a statement that the required discussion occurred, and a statement as to whether the motion is opposed.

LCvR 7(m) (emphasis added). See also FED. R. CIV. P. 37(a)(2)(A) (A motion to compel "must include a certification that the movant has in good faith conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action.").

Failure to comply with the duty to confer requirement set forth in these rules is grounds for dismissing a motion to compel. See, e.g., U.S. ex rel Hocket v. Columbia/HCA Healthcare, Corp., 498 F.Supp.2d 25, 34 (D.D.C. 2007) (counsel's failure to attach a certification that she had conferred with opposing counsel before filing a motion seeking leave to file a surreply was grounds for denying the motion); Ellipso, Inc. v. Mann, 460 F.Supp.2d 99, 102 (D.D.C. 2006) (denying discovery motions for failure to comply with LCvR 7(m)); U.S. ex rel Pogue v. Diabetes Treatment Centers of America, Inc., 235 F.R.D. 521, 528 (D.D.C. 2006) (denying a motion to compel for failure to comply with FRCP 37(a)(2)(A) and LCvR 7(m)). The Local Rule is clear that compliance with the duty to confer requirement necessitates something more than an exchange of letters or a chain of e-mail correspondence; if the moving party does not discuss the anticipated motion with opposing counsel "in person or by telephone," then she has not followed the rule and the court may dismiss her motion. See id. (holding that parties who generated "an abundance of paper in corresponding about the underlying discovery disputes" but did not "discuss[] the motions in person of by phone" did not comply with Local Civil Rule 7(m)).

Plaintiff argues that Defendants' Motion to Compel must be dismissed because Defendants failed to comply with Local Civil Rule 7(m) and Federal Rule of Civil Procedure 37(a)(2)(A). (Pl.'s Opp'n at 1-2.) Specifically, Plaintiff submits that the parties never had a conversation about the alleged problems with Plaintiff's responses to Defendants' discovery requests. (Id. at 1.) Furthermore, Plaintiff asserts that defense counsel merely left a voicemail communicating their intent to file a motion to compel and failed to respond to a subsequent e-mail from Plaintiff's counsel inquiring about the basis for the motion. (Id. at 2.) Accordingly, Plaintiff argues that the "Rule 37(a)(1)(B) certificate"*fn2 appended to Defendants' Motion, which states that "counsel for Post has in good faith conferred or attempted to confer with counsel for ERC" is erroneous. (Id.) Defendants respond to these allegations with a Declaration that details "multiple emails" and "at least one letter" demanding documents from Plaintiff and/or discussing Defendant's contention that Plaintiff's responses were inadequate. (Def.'s Reply at 3; see also Decl. of Rafe Petersen.)

Even if this Court accepts as true Defendants' assertion that they communicated about the motion with opposing counsel by emails and letters, the Court would still have a basis for dismissing Defendants' Motion for failure to comply with the meet and confer requirement. As stated above, Local Rule 7(m) requires something more than an exchange of written correspondence. The rule anticipates that attorneys will, at a minimum, pick up the telephone and speak to their colleagues as problems arise in litigation. Perhaps if such a conversation occurred before Defendants filed their Motion to Compel, the issues now before the Court could have been narrowed in scope or eliminated altogether. Therefore while the Court will not dismiss Defendants' Motion on these grounds, the Court ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.