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Lologa Toilolo, An Individual v. Aach Holding Co.

October 25, 2012

LOLOGA TOILOLO, AN INDIVIDUAL,
PLAINTIFF,
v.
AACH HOLDING CO., NO. 2, LLC, A FLORIDA LIMITED LIABILITY COMPANY; AACH NO. 3 HOLDING CO., LLC, A FLORIDA LIMITED LIABILITY COMPANY; SARDINHA AND CILEU MANAGEMENT, INC., A CALIFORNIA
CORPORATION; IN PERSONAM, AND F/V ISABELLA, U.S. COAST GUARD OFFICIAL NUMBER 1212240, HER ENGINES, TACKLE, APPAREL, FURNITURE, AND APPURTENANCES, IN REM, AND DOES 1 THROUGH 20, INCLUSIVE,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge United States District Court

ORDER DENYING WITHOUT PREJUDICE JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE [Docket No. 56]; REQUIRING IN PERSON MEET AND CONFER OF LEAD TRIAL COUNSEL; AND REQUIRING LEAVE OF COURT PRIOR TO FILING ANY ADDITIONAL DISCOVERY DISPUTES

This is a Jones Act case involving an accident on the high seas that occurred on June 29, 2009 on the U.S. flag tuna purse seiner F/V ISABELLA. For the following reasons, the Joint Motion for Determination of Discovery Dispute No. 3 is Denied without Prejudice.

RULES GOVERNING DISCOVERY AND DISCOVERY DISPUTES

The deadline for completion of discovery in this case was August 10, 2012. [Docket No. 33.] The Scheduling Order explained:

"Completed" means that all discovery under Rules 30-36 of the Federal Rules of Civil Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient period of time in advance of the cutoff date, so that it may be completed by the cut-off date, taking into account the times for service, notice and response as set forth in the Federal Rules of Civil Procedure.

[Docket No. 31 at 1-2.]

Chambers rules require:

Any motion to compel discovery or a motion for a protective order relative to discovery shall be brought by joint motion as described in Section "D" below and filed no later than 45 days after the date upon which the event giving rise to the dispute occurred. For oral discovery, the event giving rise to the dispute is the completion of the transcript of the affected portion of the deposition. For written discovery, the event giving rise to the discovery dispute is the service of the response, not the date on which counsel reach an impasse in meet and confer efforts [Civil Case Procedures at 2.] Chambers Rules also provide:

Meet and Confer Requirements: Counsel must meet and confer on all issues before contacting the court. If counsel are located in the same district, the meet and confer must be in person. If counsel are located in different districts, then telephone or video conference may be used. In no event will meet and confer letters, facsimiles or emails satisfy this requirement. [Id. at 3.]

FAILURE TO MEET AND CONFER AND TO FILE PROPER JOINT MOTION

The purpose of these rules is to ensure that discovery disputes are handled in a timely and efficient manner. This has not happened in this case. In the motion presently pending before the court, the deposition in question took place on July 26 and 27 of this year. The dispute was not put in front of the court until October 16, 2012 and even then it was presented without a proper meet and confer conference and in a needlessly confusing manner.

The declaration of Mr. Banning states that the parties discussed the issue in person and by telephone on August 2, 2012. [Banning Decl. ¶ 3.] Although the parties cannot agree when the draft or final version of the deposition transcript were completed, they do agree that no transcript had been received on August 2, 2012.*fn1 The parties exchanged emails on August 2, 13, and 15 and then again two months later on October 2 and 10, 2012. The parties did not fulfill the requirement to meet and confer in a meaningful manner. The in-person discussion prior to receipt of any transcript is insufficient.

The parties have also failed to present the dispute in a reasonable manner. The parties have presented a Joint Motion that is 28 pages long [Docket No. 56]; a separate memorandum of points and authorities from Plaintiff, which Defendants claim they did not receive prior to the filing of the Joint Motion; a declaration submitted by Mr. Banning after the joint motion [Docket Nos. 57, 58] which included more argument on the motion; a declaration from Mr. Cogswell [Docket No. 60] disputing the separate declaration of Mr. Banning; and a second declaration from Mr. Banning ...


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