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Steele v. Punch Bowl Detroit, LLC

United States District Court, E.D. Michigan, Southern Division

June 29, 2017

SEAN STEELE, Plaintiff,
v.
PUNCH BOWL DETROIT, LLC d/b/a PUNCH BOWL SOCIAL and PUNCH BOWL SOCIAL, jointly and severally, Defendants.

          OPINION AND ORDER DENYING MOTION TO COMPEL

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

         The court is presented with an elaborate motion to compel answers to interrogatories and to produce documents. (Dkt. #17.) A similarly elaborate response was filed (Dkt. #18.), along with a reply (Dkt. #20). This heaping pile of expensive briefing was essentially unnecessary.

         This court's Scheduling Order provides, among other things, in Section 7 that:

Before filing any motion, read and closely follow E.D. Mich. L.R. 7.1(a)(2) in seeking concurrence. Moving counsel must specifically report the events that lead to concurrence being refused. Unreasonable withholding of consent may lead to sanctions under LR 7.1(a)(3) as may the absence (or functional absence) of effort to seek an agreement that was later accomplished upon the motion being filed.

(Dkt. #14, Pg. ID 83 (emphasis added).)

         Plaintiff, as moving counsel in this matter, has failed almost completely to report the events as the court's order requires. Plaintiff's counsel provides this specification of his efforts to meet and confer: “WHEREFORE, Plaintiff sought concurrence prior to filing this motion but it was not obtained.” (Dkt. #17, Pg. ID 123). The Local Rules indicate that:

         If concurrence is not obtained the motion must state:

(A) there was a conference between attorneys or unrepresented parties and other persons entitled to be heard on the motion in which the movant explained the nature of the motion or request and its legal basis and requested but did not obtain concurrence in the relief sought;
(B) despite reasonable efforts specified in the motion or request, the movant was unable to conduct a conference; or
(C) concurrence in this motion has not been sought because the movant or nonmovant is an incarcerated prisoner proceeding pro se.

E.D. Mich. LR 7.1(a)(2). “The purpose of Local Rule 7.1(a) is to preclude the incurrence of unnecessary fees, costs and expenses by the party who intends to file the motion where the non-moving party concurs with the relief sought by the party intending to file the motion.” Dupree v. Cranbrook Educ. Cmty., No. 10-12094, 2012 WL 1060082, at *13 (E.D. Mich. Mar. 29, 2012).

         This court's practice guidelines, available online, state categorically that “[f]ailure to comply or to state the details of compliance as required may result in a denial of the motion without response.” Plaintiff's boilerplate and conclusory recitation claiming to have complied with the requirement that he seek concurrence prior to filing his motion is plainly insufficient. Indeed, the attachments to Plaintiff's motion reveal that the efforts made were cursory and flippant at best. Defendants' counsel suggested by email that Plaintiff had “misunderstood” Defendants' objections, and offered “to meet and confer with [counsel] concerning Defendant's objections and responses on Friday, March 24 if [counsel is] available.” (Dkt. #17-6, Pg. ID 165.) To this outreach Plaintiff shot back: “Your response satisfies any requirement to confer. Plaintiff disagrees to any alleged ambiguity and the merit of your objections. I will plan accordingly.”[1] (Id.)

         The court will deny Plaintiff's motion to compel for failing to comply with the requirements of Local Rule 7.1(a). Nor is the court's conclusion disturbed by Plaintiff's contention in his reply that the parties have since discussed the motion and are at an impasse. Such discussions must occur before a motion is filed lest the conference obligation become a dead-letter while litigants blackmail one another into acquiescence by burying the court in worthless paper. Such a file-first-talk-later attitude is consistent with neither the letter nor the spirit of the rules governing discovery motions.

         Federal Rule of Civil Procedure 37 states that “[i]f the motion is denied, the court . . . must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses . . . including attorney's fees.” Fed.R.Civ.P. 37(a)(5)(B). The court may not award such fees “if ...


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