Opinion
Civil Action No. 07-cv-00249-REB-KLM.
November 28, 2007
ORDER
This matter is before the Court on Plaintiff's Motion to Compel Responses to Written Discovery from Defendant Kerry Dyles [Docket No. 74, Filed November 6, 2007] ("Motion to Compel").
Plaintiff seeks an order compelling Defendant Dyles to respond to Plaintiff's Combined Discovery Requests served August 24, 2007 and requiring Defendant to pay its attorney fees incurred in issuing the discovery requests and in litigating the Motion to Compel. Defendant Dyles' response to the Combined Discovery Requests was due on September 24, 2007. None was received. Plaintiff's counsel corresponded via fax to Defendant Dyles' counsel on October 1, 2007 to remind him of his client's obligation to respond to the discovery requests, and attached a copy of the Combined Discovery Requests [Docket No. 74-3, Exhibit B]. On October 2, 2007, Dyles' counsel left Plaintiff's counsel a voicemail message denying that he received the discovery requests. On October 11, 2007, Dyle's counsel requested an extension of time for his client to respond, and Plaintiff agreed to extend to deadline to October 18, 2007 [Docket No. 74-5, Exhibit D]. On October 17, 2007, Dyles' counsel sought a second extension, up to November 1, 2007 [Docket No. 74-6, Exhibit E]. Plaintiff agreed, but Dyles' counsel ultimately rejected this concession and did not forward his client's response [Docket No. 74-7, Exhibit F].
At the time of the filing of the Motion to Compel, Defendant Dyles had not responded to the discovery requests. Pursuant to D.C.Colo.L.Civ.R. 7.1C, Defendant Dyles' response to the Motion to Compel was due on or before November 26, 2007. Defendant Dyles' time to respond to the Motion to Compel has now passed, and he failed to respond to it. Based on the record before the Court, although Defendant Dyles' counsel asserted to Plaintiff's counsel that Defendant was not properly served with the Combined Discovery Requests on August 24, 2007, he appears to acknowledge receipt of the requests as of October 1, 2007.
IT IS HEREBY ORDERED that the Motion to Compel is GRANTED. Defendant Dyles is ordered to respond to Plaintiff's Combined Discovery Requests no later than December 7, 2007.
IT IS FURTHER ORDERED that Plaintiff's request for sanctions is GRANTED. First, the Court orders that Defendant Dyles' failure to timely raise objections to the Combined Discovery Requests waives all such objections, other than those based on applicable privileges. Defendant Dyles must, therefore, respond to the Combined Discovery Requests in full, without objection, except objections based upon applicable privileges. Second, Defendant Dyles shall pay the reasonable attorney fees and costs incurred by Plaintiff relating to Defendant Dyles' failure to respond to Plaintiff's Combined Discovery Requests and litigating the Motion to Compel from September 24, 2007 to the present. It is within the Court's discretion to award reasonable attorney fees to Plaintiff pursuant to Fed.R.Civ.P. 37(a), and the Court is particularly moved to do so here where Defendant Dyles is represented by counsel and nothing in the record before the Court excuses his failure to respond to the Combined Discovery Requests.
IT IS FURTHER ORDERED that Plaintiff shall file an affidavit or affidavits of attorney fees and costs incurred by December 7, 2007. Defendant Dyles' objection, if any, to the affidavit(s) submitted by Plaintiff shall be filed by December 11, 2007. Defendant Dyles' failure to comply with this Order will result in the imposition of further sanctions, including the possibility of entry of a default judgment against him without further notice.