Racine v. P.H. Las Vegas, LLC
Filing
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ORDER Denying 33 Motion to Compel. Joint Status Report due by 1/6/2012. Signed by Magistrate Judge Cam Ferenbach on 12/7/11. (Copies have been distributed pursuant to the NEF - ASB)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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VANESSA RACINE,
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Plaintiff,
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v.
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PHW LAS VEGAS, LLC, et al.,
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Defendants.
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2:10-cv-01651-LDG -VCF
ORDER
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Before the court is plaintiff Vanessa Racine’s Motion To Compel. (#33). Defendants PHW Las
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Vegas, LLC and PHW Manager, LLC (hereinafter collectively “PHW”) filed an Opposition (#37), and
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plaintiff filed a Reply (#38).
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Plaintiff filed her complaint on September 24, 2010 (#1), alleging that defendants PHW were
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negligent when they failed to implement security procedures to protect their patrons from individuals
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following them to their rooms and robbing, assaulting, and committing other crimes against them.
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Plaintiff asserts that she was “violently assaulted physically and sexually” as a result of defendants’
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breach of their duty to check if individuals seeking access to the rooms were in fact guests of the hotel
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or invitees. (#33). Defendants contend that no such duty exists, and assert that they cannot be held
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liable for plaintiff’s alleged injuries or damages. (#37).
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Motion To Compel (#33)
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A.
Background/Arguments
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On April 11, 2011, defendants received plaintiff’s first set of interrogatories and first request for
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production of documents. (#33). On May 11, 2011, defendants provided responses to plaintiff’s
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discovery requests. Id. Defendants objected to forty-seven (47) of the requests, and of the twenty-five
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interrogatories, defendants answered only four, while still asserting objections thereto. Id. The
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defendants’ responses consisted of four common objections: (1) the request/interrogatory seeks
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information relating to the entire hotel, which is not relevant, because the incident occurred exclusively
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on the elevators and in a room of the guest tower, (2) no protective order is in place, (3) plaintiff failed
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to limit the discovery requests to a reasonable time period, as defendants did not own the casino during
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several years within the time-frame specified in the request/interrogatory, and (4) that defendants were
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uncertain as to the meaning of several terms and phrases used in the request/interrogatory. Id.
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On May 23, 2011, plaintiff sent a letter to defendants asserting that defendants must withdraw
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their objections and provide the answers and documents requested. Id. Defendants never addressed the
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issues in plaintiff’s letter, and insisted on a protective order. Id. Plaintiff contends that she refrained
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from filing the present motion to compel until a protective order could be entered. Id. On October 3,
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2011, defendants assert that the parties spoke on the phone regarding extending discovery deadlines and
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the status of obtaining a protective order to govern some of the requested material. (#37). The parties
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did not discuss the May 23, 2011, letter or the non-protective order related objections. Id. With the
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exception of this one telephone conversation, defendants’ counsel asserts, plaintiff’s counsel
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communicated with defense counsel solely via email, despite defense counsel continuously insisting that
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communications be via telephone or written letters. Id.
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On October 5, 2011, defendants’ counsel provided plaintiff’s counsel with a 17 page proposed
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protective order. Id. However, after plaintiff provided comments and changes to the protective order,
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the parties were unable to reach an agreement. Id. Plaintiff contends that on October 24, 2011, she
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submitted an electronic message advising defendants that a motion to compel would be filed. Id. On
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October 27, 2011, plaintiff filed the present motion to compel1. (#33).
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Defendants allege that the motion should be denied, because at not time did plaintiff sincerely
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attempt to meet and confer with defendants regarding the discovery dispute. (#37). Defendants contend
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that plaintiff only sent the demanding letter on May 23, 2011, and never engaged in any meaningful
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The court notes that the body of the motion to compel (#33) is identical to the May 23, 2011, demand letter
(#33 Exhibit 5) to defendants.
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attempt to resolve the issues without the court’s intervention, and never spoke either on the phone or
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face to face regarding the alleged deficient responses. Id. Defendants also argue that plaintiff waited
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four months after sending the May 23, 2011, letter before raising the issue again. Id. Since the parties
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could not agree on the substance of the protective order, the defendants assert that they will be filing
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a motion for protective order with the court. Id. To date, no motion for protective order has been filed.
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B.
Discussion
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The court finds that both parties have not acted appropriately with regards to the discovery
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dispute. Plaintiff did not conduct a meaningful meet and confer in an attempt to resolve the dispute
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without the court’s intervention, as she never discussed the dispute personally or telephonically with
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defendants’ counsel, and only sent a demanding letter for supplemental responses. Federal Rule of Civil
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Procedure 37(a)(1); Local Rule 26-7(b)(stating that “[d]iscovery motions will not be considered unless
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a statement of the movant is attached thereto certifying that, after personal consultation and sincere
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effort to do so, the parties have been unable to resolve the matter without court action.”)(emphasis
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added). Defendants have not filed a motion for protective order with the court, despite objecting to at
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least twenty-three discovery requests because a protective order was not in place and conveying to the
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court their intention to file such a motion.
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Since the parties have expressed that they cannot agree on a protective order, the court has
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prepared and is entering a protective order in conjunction with this order. The parties shall, within
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fourteen days from the entry of this order, meet and confer and file a joint request for modifications of
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the protective order. The parties must meet face to face and confer within ten days from the entry of
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this order in an attempt to resolve the discovery issues. The parties shall file a joint status report by
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January 6, 2012, informing the court of any remaining discovery issues.
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Accordingly, and for good cause shown,
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IT IS ORDERED that plaintiff Vanessa Racine’s Motion To Compel (#33) is DENIED as
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discussed above. The parties must meet face to face and confer within ten days from the entry of this
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order and shall file a joint status report by January 6, 2012, informing the court of any remaining
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discovery issues.
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DATED this 7th day of December, 2011.
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CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE
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