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Hoelzel v. First Select Corp.

United States District Court, D. Colorado.
May 6, 2003
214 F.R.D. 634 (D. Colo. 2003)

Summary

holding that a single email stating that counsel intended to file a motion to compel, without more, did not constitute a good faith attempt to resolve the disputed matter

Summary of this case from Grace Requires Understanding, Inc. v. Rogers

Opinion

         On plaintiff's motion to compel, the District Court, Boland, United States Magistrate Judge, held that plaintiff's counsel flagrantly violated conference requirements of local rule before filing motion to compel by sending single e-mail to defendant merely indicating an intention to file a motion to compel, with no suggestion of any negotiation or compromise.

         Motion denied.

         Susan Marie Warren, Richard N. Feferman, Attorney at Law, Albuquerque, NM, for plaintiff.

          Adam Lloyd Plotkin, Adam L. Plotkin, P.C., Denver, CO, for defendant.


         ORDER

          BOLAND, United States Magistrate Judge.

         This matter is before me on the Plaintiff's Motion to Compel, filed February 18, 2003. Because the plaintiff failed to comply with the requirements of D.C.COLO.LCivR 7.1A, the Motion to Compel is DENIED.

         Local rule 7.1A, D.C.COLO.LCivR, requires:

The court will not consider any motion, other than a motion under Fed.R.Civ.P. 12 or 56, unless counsel for the moving party or a pro se party, before filing the motion, has conferred or made reasonable, good-faith efforts to confer with opposing counsel or a pro se party to resolve the disputed matter. The moving party shall state in the motion, or in a certificate attached to the motion, the specific efforts to comply with this rule.

         The Motion to Compel contains the following sentence, apparently in an attempt to comply with the requirement of Rule 7.1A: " Plaintiff's counsel made a good faith effort to secure the responses without court action." Motion to Compel, p. 1. Contrary to the requirements of the local rule, the certificate does not describe at all, much less with sufficient detail to satisfy the requirements of the rule, the " specific efforts" made to resolve the dispute.

         In its Response to the Motion to Compel the defendant states, and the plaintiff does not dispute, that " [t]he only communication Plaintiff attempted with Defendant before filing this motion was an e-mail sent on Wednesday, February 12, 2003." Response, p. 3. The e-mail is attached as an exhibit to the Response and states in its entirety:

Defendant refused to respond to any of Plaintiff's discovery requests. Plaintiff intends to file a motion to compel. Please indicate whether Defendant opposes this motion.

Id. at Exh. C.

         The purpose of Rule 7.1A is to require the parties to confer and to attempt to resolve a dispute before incurring the expense of filing a motion and before requiring the court to address a disputed issue. Rule 7.1A serves a particularly important function in connection with discovery disputes because the parties, through negotiations, frequently are able to narrow the discovery requests in a way which eliminates the need for judicial intervention. For example, in Pulsecard, Inc. v. Discover Card Services, Inc., 168 F.R.D. 295 (D.Kan.1996), the court noted:

These conference requirements serve to satisfactorily resolve discovery disputes without judicial involvement. Failure to confer or attempt to confer may result in unnecessary motions. When the court must resolve a dispute that the parties themselves could have resolved, it must needlessly expend resources that it could better utilize elsewhere.

Id. at 302. Without meaningful negotiations by the parties, the courts would be flooded with discovery motions.

          The language of Rule 7.1A is important. It requires that a moving party, before filing a motion, confer or make a reasonable effort to confer; the requirement is not satisfied by a party making a demand for compliance. To confer means " to hold a conference; compare views; consult together." The American Heritage Dictionary of the English Language 278-79 (Ninth Printing 1971). The rule is not satisfied by one party sending a single e-mail to another party, and particularly not where, as here, the e-mail merely indicates an intention to file a motion to compel and does not suggest any negotiation or compromise. Nor, in my view, would a single letter or a single voice message satisfy the requirements of Rule 7.1A. Pulsecard, 168 F.R.D. at 302 (D.Kan.1996)(holding that one letter to opposing counsel does not satisfy a party's duty to confer in an attempt to resolve issues in dispute prior to filing a discovery motion, applying the equivalent rule in the District of Kansas). Rather, to satisfy the requirements of Rule 7.1A, the parties must hold a conference, possibly through the exchange of correspondence but preferably through person-to-person telephone calls or face-to-face meetings, and must compare views and attempt to reach an agreement, including by compromise if appropriate.

         I agree with the holding in Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 456 (D.Kan.1999), where the defendant made four telephone calls and sent two letters before filing its motion to compel:

Were the court to only consider the number of attempts it might find that defendant made reasonable efforts to confer. The quantity of efforts of itself appears to satisfy the duty to confer imposed by the Federal Rules of Civil Procedure and the [local rules of practice]. The court, however, looks beyond the sheer quantity of contacts. It examines their quality as well. The duty to confer involves more than making a certain number of contacts with opposing counsel. The quality of the contacts is far more important than the quantity. In this instance the court does not find the efforts of defense counsel constitute reasonable efforts to confer in good faith.... Before filing a motion to compel, the movant must make reasonable efforts to confer. That generally requires counsel to " converse, confer, compare views, consult and deliberate."

Id. at 459 (internal citations omitted).

          The certification made in this case by counsel for the plaintiff, that he " made a good faith effort to secure responses without court action," is untrue. Plaintiff's counsel did not attempt in good faith to resolve the discovery dispute before filing the motion. After receiving the plaintiff's e-mail demand, defense counsel responded that he was out of the office until February 18, 2003, and requested that plaintiff's counsel contact him after February 18 to discuss the discovery dispute. Response, Exh. D. Instead of calling and meaningfully attempting to confer about the discovery issue as requested, plaintiff's counsel filed the Motion to Compel on February 18. The plaintiff did not initiate a conference in which the parties could discuss the propriety of the discovery requests or the defendant's asserted objections to them; the parties did not discuss precisely what information it is that the plaintiff needs or how the requests could be narrowed so as to avoid the defendant's objections; there was no deliberation, conversation, exchange of views, or consultation between the parties; nor was there any genuine attempt to resolve the dispute without judicial intervention.

         Plaintiff's counsel flagrantly violated the requirements of Rule 7.1A and misstated the facts in his Motion to Compel. Accordingly,

         IT IS ORDERED that the Motion to Compel is DENIED.


Summaries of

Hoelzel v. First Select Corp.

United States District Court, D. Colorado.
May 6, 2003
214 F.R.D. 634 (D. Colo. 2003)

holding that a single email stating that counsel intended to file a motion to compel, without more, did not constitute a good faith attempt to resolve the disputed matter

Summary of this case from Grace Requires Understanding, Inc. v. Rogers

concluding that a single email did not satisfy the meet-and-confer requirement

Summary of this case from Fields v. Folk

concluding that a single email did not satisfy the meet and confer requirement

Summary of this case from Thompson v. City of Fort Wayne

concluding that a single email did not satisfy the meet and confer requirement

Summary of this case from Hartford v. Schindler Elevator Corp.

concluding that a single email did not satisfy the meet and confer requirement

Summary of this case from Europe v. Forks RV

denying motion because, among other reasons, "Plaintiff's counsel flagrantly violated the requirements of Rule 7.1A"

Summary of this case from Dedmon v. Cont'l Airlines, Inc.

noting that the purpose of the District of Colorado's local "Rule 7.1A is to require the parties to confer and to attempt to resolve a dispute before incurring the expense of filing a motion and before requiring the court to address a disputed issue"

Summary of this case from Szuszalski v. Fields

In Hoelzel v. First Select Corp., 214 F.R.D. 634, 635-36 (D. Colo. 2003), the court determined that the obligation "to confer" meant more than simply making a demand for compliance, and that parties were required "to hold a conference, compare views, consult together."

Summary of this case from Kimbrell v. Chaves Cnty. Clerk

In Hoelzel v. First Select Corp., 214 F.R.D. 634, 635-36 (D. Colo. 2003), the court determined that a single e-mail stating that plaintiff intended to file a motion to compel based on the defendant's refusal to respond to discovery requests was insufficient to satisfy the requirements that parties make reasonable good-faith efforts to confer with opposing counsel to resolve the disputed matter.

Summary of this case from Gabaldon v. Stock

In Hoelzel, the court noted that a single e-mail stating that the plaintiff intended to file a motion to compel based on the defendant's refusal to respond to discovery requests was insufficient to satisfy the requirement that parties make reasonable good-faith efforts to confer in an attempt to resolve a disputed matter.

Summary of this case from Miller v. Chambers

observing that a single e-mail stating that the plaintiff intended to file a motion to compel based on the defendant's refusal to respond to discovery requests was insufficient to satisfy the requirements that the parties make reasonable good faith efforts to confer with opposing counsel to resolve a disputed matter; to confer means more than making a demand for compliance; it means "to hold a conference; compare views; consult together."

Summary of this case from Costales v. Schultz

noting that compliance with local rule 7.1A requires that the parties "compare views and attempt to reach an agreement, including by compromise if appropriate"

Summary of this case from BP Sourcing, LLC v. Fleetwoodgoldcowyard, Inc.

indicating a single email indicating that party was going to file a motion to compel did not satisfy the meet and confer requirement

Summary of this case from Forest River Housing, Inc. v. Patriot Homes, Inc. (N.D.Ind. 5-7-2007)

indicating a single email indicating that party was going to file a motion to compel did not satisfy the meet and confer requirement

Summary of this case from In re Fedex Ground Package System, Inc. (N.D.Ind. 1-5-2007)
Case details for

Hoelzel v. First Select Corp.

Case Details

Full title:Genette HOELZEL, on behalf of herself and all others similarly situated…

Court:United States District Court, D. Colorado.

Date published: May 6, 2003

Citations

214 F.R.D. 634 (D. Colo. 2003)

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