Correos et al v. National Default Servicing Corporation et al
Filing
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ORDER Denying without prejudice 37 Motion to Deem Requests for Admissions to be Admitted. Signed by Magistrate Judge Nancy J. Koppe on 2/15/13. (Copies have been distributed pursuant to the NEF - MMM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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HAROLD CORREOS, et al.,
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Plaintiffs,
vs.
NATIONAL DEFAULT SERVICING
CORP., et al.,
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Defendants.
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Case No. 2:12-cv-00556-JCM-NJK
ORDER DENYING MOTION TO
DEEM REQUESTS FOR
ADMISSIONS TO BE ADMITTED
(Docket No. 37)
Pending before the Court is Defendant Wells Fargo Bank, N.A.’s (“Wells Fargo”) Motion to
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Deem Admissions Admitted in the Case, filed on January 16, 2013. Docket No. 37. Plaintiff’s
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response was due 14 days thereafter, see LR 7-2(b), but has not been filed to date. The failure to
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timely oppose a motion can constitute grounds for granting it, see LR 7-2(d), but the Court finds the
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motion to have a threshold defect that requires that it be DENIED without prejudice as discussed
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more fully below.
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The Court’s initial inquiry regarding a discovery motion is whether the movant made
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adequate meet and confer efforts. Local Rule 26-7(b) provides that “[d]iscovery motions will not be
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considered unless a statement of the movant is attached thereto certifying that, after personal
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consultation and sincere effort to do so, the parties have not been able to resolve the matter without
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Court action.”
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Judges in this District have previously held that “personal consultation” means the movant
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must “personally engage in two-way communication with the nonresponding party to meaningfully
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discuss each contested discovery dispute in a genuine effort to avoid judicial intervention.”
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ShuffleMaster, Inc. v. Progressive Games, Inc., 170 F.R.D. 166, 171 (D. Nev. 1996). The
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consultation obligation “promote[s] a frank exchange between counsel to resolve issues by
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agreement or to at least narrow and focus matters in controversy before judicial resolution is
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sought.” Nevada Power v. Monsanto, 151 F.R.D. 118, 120 (D.Nev.1993). To meet this obligation,
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parties must “treat the informal negotiation process as a substitute for, and not simply a formal
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prerequisite to, judicial review of discovery disputes.” Id. This is done when the parties “present to
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each other the merits of their respective positions with the same candor, specificity, and support
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during the informal negotiations as during the briefing of discovery motions.” Id. To ensure that
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parties comply with these requirements, movants must file certifications that “accurately and
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specifically convey to the court who, where, how, and when the respective parties attempted to
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personally resolve the discovery dispute.” ShuffleMaster, 170 F.R.D. at 170 (emphasis added).
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The pending motion provides no certification whatsoever about the meet and confer efforts
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of counsel prior to filing the motion. The closest that the papers come to providing a certification is
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the statement in Wells Fargo’s request for sanctions that “Wells Fargo should be awarded attorney’s
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fees and costs, based on the good faith attempts by Wells Fargo to try and resolve the issues
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surrounding the propounded discovery prior to filing the Motion to Deem the Requests for
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Admissions Admitted in this case.” See Mot. at 12.1 Even were the Court to consider this statement
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to be a certification, it is woefully deficient because it fails to provide any details of the meet and
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confer process. See ShuffleMaster, 170 F.R.D. at 172 (rejecting as insufficient certification that
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“after personal consultation and sincere effort to do so, counsel have been unable to satisfactorily
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resolve this matter”).
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The papers make clear that Wells Fargo sent a letter to Plaintiffs on December 27, 2012
informing them that their discovery responses were late. See Mot. Exh. 2. Wells Fargo had then agreed
to an extension for the responses. See Mot. Exh. 3. These discussions pre-dated the failure to provide
discovery responses by the extended deadline that is the basis for Wells Fargo’s pending motion.
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Accordingly, the Motion to Compel is hereby DENIED without prejudice.
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IT IS SO ORDERED.
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DATED this 15th day of February, 2013.
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______________________________________
NANCY J. KOPPE
United States Magistrate Judge
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