Opinion
3:23-CV-223-CEA-JEM
07-22-2024
MUTUAL WORK COMP SOLUTIONS, LLC, Plaintiff, v. BARONHR, LLC, et al., Defendants.
ORDER
Jill E. McCook United States Magistrate Judge
This case is before the Court pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.
Now before the Court is Plaintiff's Motion to Compel Discovery as to Defendant Luis E. Perez and Incorporated Memorandum [Doc. 58]. Plaintiff seeks an order compelling Defendant Luis E. Perez (“Defendant Perez”) to respond to Plaintiff's First Request for Production of Documents (“RFPs”) [Id. at 1]. For grounds, Plaintiff served Defendant Perez with its RFPs on April 22, 2024 [Id.; see also Doc. 58-1]. “To date, Plaintiff's counsel . . . has not received the requested documents or any communication from [Defendant] Perez about this discovery” [Doc. 58 p. 1]. Plaintiff acknowledges that it has not met and conferred with Defendant Perez because he “has in no way participated in the litigation since the withdrawal of his counsel earlier this year” [Id. at 1-2]. Indeed, Plaintiff asserts, “[Defendant] Perez further ignored the Court's Order [Doc. 46]” [Id. at 2]. As such, Plaintiff states that “it is fair that any further attempts by Plaintiff's counsel to prod [Defendant] Perez to respond would be futile” [Id.]. Further, a meet and confer is not required, Plaintiff argues, because it and Defendant Perez are not engaged in a “discovery ‘dispute' in the traditional sense” because the issue here is that “[Defendant] Perez has just failed to respond and produce documents requested” [Id. at 3]. Plaintiff seeks an order compelling Defendant Perez to respond to the RFPs within 21-days; it does not seek an award of attorneys' fees [Id.].
No party has responded to the motion, and the time for doing so has passed. While this reason alone could call for the requested relief, see E.D. Tenn. L.R. 7.2 (“Failure to respond to a motion may be deemed a waiver of any opposition to the relief sought.”), the Court also finds Plaintiff's request for an order compelling Defendant Perez to respond to the RFPs well taken because they are overdue. While Plaintiff did not meet and confer with Defendant Perez as required, see Fed.R.Civ.P. 37(a), the Court finds that under the circumstances, it would have been futile because Defendant Perez has not participated in this case [see Docs. 45 & 57] and has not responded to this motion. See also Goodyear Tire & Rubber Co. v. Conagra Foods, Inc., No. 2:20-CV-6347, 2023 WL 5162655, at *3 (S.D. Ohio Aug. 11, 2023) (considering the defendant's motion to compel even though the defendant did not engage in a discovery conference, explaining “that a conference would have been futile under the circumstances”).
The Court therefore ORDERS Defendant Perez to fully respond to Plaintiff's First Request for Production of Documents in accordance with the Federal Rules of Civil Procedure within 21 days of entry of this Order. The Court ADMONISHES Defendant Perez that the failure to fully comply with this Order may lead to sanctions, up to and including entry of default. See Fed.R.Civ.P. 37(b)(2)(A) & (C). For the reasons explained herein, the Court GRANTS Plaintiff's Motion to Compel [Doc. 58].
IT IS SO ORDERED.