Opinion
Cause No. 3:05-CV-96 CAN.
June 2, 2005
ORDER AND OPINION
On April 28, 2005, this Court conducted a Fed.R.Civ.P. 16(b) preliminary pretrial conference to establish various deadlines in this case. Pursuant to this Court's April 28, 2005 scheduling order, parties were to exchange their Fed.R.Civ.P. 26(a)(1) initial disclosures by May 12, 2005. On May 31, 2005, Defendant filed a motion for sanctions, requesting that this Court dismiss Plaintiff's complaint pursuant to Fed.R.Civ.P. 37(b)(2)(C) for Plaintiff's failure to produce his initial disclosures.
Under Rule 37(b)(2)(C), dismissal of a complaint is a possible discovery sanction. However, N.D.L.R. 37.1 requires that, with respect to motions regarding discovery, the moving party must include a certification that the movant has in good faith conferred or attempted to confer with the opposing party in order to resolve the discovery dispute without court action. Defendant's motion, which is a motion regarding a discovery dispute, does not contain the certification required by N.D.L.R. 37.1.
However, even if Defendant had included the required certification, Defendant's motion is premature. This is the first notification to this Court that Plaintiff has not complied with the scheduling order. If Defendant had concerns over Plaintiff's failure to produce his initial disclosures, Defendant could have filed a motion to compel with this Court. Instead, it appears that Defendant is ultimately attempting to dismiss Plaintiff's complaint without adequately establishing a documented foundation of repeated discovery abuse. Thus, for the aforementioned reasons, Defendant's motion for sanctions [Doc. No. 19] is DENIED.