United States District Court, D. Connecticut
RULING ON MOTION TO COMPEL
F. Martinez United States Magistrate Judge.
before the court is the plaintiff's motion to compel
pursuant to Fed.R.Civ.P. 37. (Doc. #43.) The motion is granted
absent objection or response of any kind.
September 20, 2016, the plaintiff served interrogatories and
requests for production on defendant Daniel Greer.
must answer or object to interrogatories and production
requests within thirty days after being served. Fed.R. Civ.P.
33(b)(3), 34(b). "Untimely objections are waived unless
the party's failure to object is excused by the court for
good cause shown." Spencer v. Kenny, No.
3:11CV50(RNC), 2015 WL 6958009, at *1 (D. Conn. Nov. 10,
2015). See Rule 33(b)(4); Oliphant v.
Villano, No. 3:09CV862(JBA), 2010 WL 4909238, at *3 (D.
Conn. Nov. 24, 2010) ("The failure to respond or object
to a discovery request in a timely manner waives any
objection that may have been available."); Horace
Mann c. v. Nationwide Mut. Ins. Co., 238 F.R.D. 536, 538
(D. Conn. 2006)(finding that a Rule 33(b)(4) type waiver
applies to Rule 34 production requests)(citing cases).
"These time limits are mandatory and are important to
the speedy resolution of cases." Berube v. Great
Atl. & Pac. Tea Co., Inc., No. 3:06cv197(PCD), 2006
WL 3826702, *5 (D. Conn. Nov. 30, 2006).
The time limits set forth in the Federal Rules of Civil
Procedure are not optional. . . . Litigants simply do not
have unbridled, unilateral discretion to decide when they
will respond to discovery requests. The very notion of such a
chaotic system would make it impossible for cases to be
resolved in a just, speedy, and inexpensive manner
contemplated by Rule 1 of the Federal Rules of Civil
Id. (quoting Billups v. West, No. 95 Civ.
1146, 1997 WL 100798, at *2 (S.D.N.Y. Mar. 6, 1997)).
thirty day deadline passed. The defendant neither filed a
motion for extension of time nor responded to the discovery
November 1, 2016, the plaintiff filed the instant motion to
compel. The defendant still did not respond. The
defendant's opposition to the motion was due 21 days
thereafter - on November 22, 2016. See D. Conn. L.
Civ. R. 7(a)1 ("memoranda in opposition to any motion
shall be filed within twenty-one (21) days of the filing of
the motion.") "Failure to submit a memorandum in
opposition to a motion may be deemed sufficient cause to
grant the motion . . . ." D. Conn. L. Civ. R. 7(a)1. The
deadline passed and the defendant did not file anything in
response to the plaintiff's motion to compel.
plaintiff's motion to compel is GRANTED. Because the
defendant asserted no objections, he therefore has waived all
objections. The defendant's compliance is due within 14
days of this order. See D. Conn. L. Civ. R. 37(d).
Failure to comply with the court's order may, and likely
will, result in the imposition of sanctions, up to and
to Rule 37, if a motion to compel is granted or if the
disclosure or requested discovery is provided after the
motion was filed, "the court must, after giving
an opportunity to be heard, require the party . . . whose
conduct necessitated the motion, . . . to pay the
movant's reasonable expenses incurred in making the
motion, including attorney's fees." Fed.R.Civ.P.
37(a)(5)(A)(emphasis added). An award of expenses is
mandatory unless "(i) the movant filed the motion before
attempting in good faith to obtain the disclosure or
discovery without court action; (ii) the opposing party's
nondisclosure, response, or objection was substantially
justified; or (iii) other circumstances make an award of
expenses unjust." Fed.R.Civ.P. 37(a)(5)(A).
the exceptions apply. The plaintiff's affidavit
demonstrates that he sought to obtain the discovery without
court intervention. As to the two other exceptions, where the
defendant neither responded to discovery requests or to the
subsequent motion to compel, he has not met his burden of
showing that his conduct was substantially justified or that
circumstances make an award of attorneys' fees unjust.
See Fed.R.Civ.P. 37. Under these circumstances, the
court must award fees. Counsel are strongly encouraged to
come to agreement as to the amount of fees. If they are
unable to, the plaintiff may submit an affidavit itemizing
any reasonable expenses incurred in filing the present motion
for which he requests reimbursement. The defendant may file
an objection within 21 days as to the amount of the requested
counsel is ordered to serve a copy of this ruling on his
not a recommended ruling. This is a discovery ruling or order
which is reviewable pursuant to the "clearly
erroneous" statutory standard of review. 28 U.S.C.
§ 636(b)(1)(A); Fed.R.Civ.P. 72(a); and Rule 72.2 of the
Local Rules for Magistrate Judges. As such, it is an order of