1

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

RICARDO WRIGHT, BERYL

JACKSON, TRACEY MARTIN,

CALVIN FLUKER, LISA

PITCHFORD, KIMBERLY LOVE,

PLAINTIFFS,

V.

U.S. FOODSERVICE, INC. and

U.S. FOODSERVICE, INC. -

MONTGOMERY DIVISION,

DEFENDANTS.

)

)

)

) CIVIL ACTION NO.:

) 2:06cv785-MHT

)

) JURY DEMAND

)

)

)

)

)

)

)

)

MOTION TO COMPEL

COME NOW, Plaintiffs, by and through counsel, and move this Honorable

Court, pursuant to Rule 37 of the Federal Rules of Civil Procedure, to enter an Order

compelling Defendants to produce information and documents in response to

Plaintiffs’ First Discovery Requests. In support of this motion, Plaintiffs state as

follows:

1. During the course of discovery, Plaintiffs have attempted to obtain

certain information fromthe Defendant, as well as documents necessary forPlaintiffs’

case. Despite numerous communications through telephone conversations, e-mails,

Case 2:06-cv-00785-MHT-WC Document 36 Filed 06/19/2007 Page 1 of 6
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and letters, Plaintiffs have been unable to obtain responsesto their discovery requests

that were sent as early as January 2007. A brief summary of the parties’ attempts to

resolve this dispute before involving this Court follows, and evidence of said

communications is attached hereto.

2. On January 16, 2007, Plaintiffs Martin, Pitchford, Fluker, Jackson and

Wright served the Defendants with their First Discovery Requests. On January 26,

2007, Plaintiff Love served the Defendants with her First Discovery Requests. On

April 3, 2007, Plaintiff Brown served the Defendants with her First Discovery

Requests. Accordingly, Defendants’ responses were due on or before thirty-three

(33) days after service of the first discovery requests, at the latest. See Fed. R. Civ.

P. 33(b)(3) and 34(b)(establishing the deadline for responsive submissions as 30

days).

3. On March 15, 2007, Plaintiffs’ counsel wrote Defendants’ counsel a

letter stating that "it has been approximately two months since we served Defendant

with the Fluker, Pitchford, Jackson, Wright and Martin discovery requests and six

weeks since we served the Love discovery requests." (EX 1). The letter demanded

that Defendants respond to Plaintiffs’ discovery by March 23, 2007, or otherwise be

forced to respond to a Motion to Compel. Id. Plaintiffs’ counsel stressed that they

did not desire the Court’s involvement in this issue, but also that Defendant’s delay

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was prejudicial. Id. No responses were received by March 24, 2007.

4. On April 12, 2007, Plaintiffs counsel again wrote Defendants’ counsel

a letter confirming that mediation was not possible and that no reason exists for any

discovery delays. (EX 2). Plaintiffs’ counsel specifically stated the following:

“[w]hile we disagree that there was ever an agreement that the Defendant should not

timely respond to Plaintiff’s pending discovery requests until a decision on mediation

was made, we are willing to agree to giving Defendant until April 27, 2007, to

properly respond.” Id. The letter also stated that Plaintiffs will seek an Order from

the Court compelling Defendants’ responses if Defendants failed to comply with

Plaintiffs’ good faith extension. Id. However, by April 28, 2007, no responses were

received.

5. On May 3, 2007, Plaintiffs’ counsel wrote Defendants’ counsel a letter

reiterating the need for Defendants’ discovery responses. (EX 3). The letter stated

that Plaintiff’s counsel had not heard fromDefendants’ counsel on this matter despite

the fact that three weeks passed since Plaintiffs gave notice that mediation was not

a possible avenue. Id. The letter also stated that Plaintiffs’ counsel did not desire to

involve this Court in any discovery disputes, but also that Plaintiffs’ counsel would

be forced to file a Motion to Compel if adequate responses were not given by

Monday, May 7, 2007. Id. Once again, Defendants failed to respond.

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6. On May 8, 2007, Plaintiffs’ counsel communicated with Defendants’

counsel through e-mail and, once again, informed Defendants’ counsel that delaysin

responding to Plaintiffs’ counsel were unacceptable and that Defendants have “not

produced a single document despite discovery requests that have been pending for

months.” (EX 4). Further, Plaintiffs’ counsel explicitly stated that “we are not

willing to wait almost an additional month for Defendants’ discovery responses.” Id.

Despite this e-mail correspondence, no responses were given.

7. On May 24, 2007, Plaintiffs’ counsel wrote a letter to Defendants’

counsel confirming that Plaintiffs granted an extension to Defendants to respond to

any outstanding discovery requests until June 5, 2007. (EX 5). The letter also stated

that Plaintiffs’ counsel would file a Motion to Compel within five (5) calendar days

of June 5, 2007, if no responses were received. Id. Despite this generous extension,

Plaintiffs’ counsel received nothing from Defendants.

8. On June 15, 2007, Plaintiffs’ counsel wrote Defendants’ counsel another

letter stating that, “[b]ased on our telephone conversation when you said you could

not have the documents available on June 5

th

, I represented to my clients that the

documents would be here on June 14

th

as we agreed.” (EX 6). Further, the letter

stated that Plaintiffs’ counsel is “now left with no choice but to file a motion to

compel next week, unless I receive the outstanding discovery documents by

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Monday.” Id.

9. No documents or responses were received by Plaintiffs’ counsel by

Monday,June 18, 2007. Moreover, no additional extensions, either verbal or written,

were given following the June 15, 2007, letter.

10. In summary, having conferred with Defendants’ counsel by telephone

calls, e-mails, and letters to no avail, Plaintiffs now turn to this Court for resolution.

11. Based upon the above evidence of communication and pursuant to Rule

37(a)(2)(b) of the Federal Rules of Civil Procedure, Plaintiffs certify that they have

conferred or attempted to confer in good faith with Defendants’ counsel to secure the

information or material sought without court action.

WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully request

that this Honorable Court enter an Order compelling Defendants to produce

information and documents in response to Plaintiffs’ First Discovery Requests.

Respectfully submitted,

s/Jon. C. Goldfarb

Jon C. Goldfarb (GOL015)

Ethan R. Dettling (DET001)

Melissa N. Tapp (TAP005)

Counsel for Plaintiffs

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OF COUNSEL:

Wiggins, Childs, Quinn & Pantazis, LLC

The Kress Building

301 19

th Street North

Birmingham, AL 35203

Telephone No.: (205) 314-0500

Facsimile No.: (205) 254-1500

CERTIFICATE OF SERVICE

I hereby certify that I have filed a true and correct copy of the above and

foregoing document the Clerk of Court using the CM/ECF system which will

electronically notify the following counsel of record:

Tammy L. Baker, Esq.,

Jackson Lewis, LLP

2001 Park Place North, Suite 650

Birmingham, AL 35203

on this the 19

th

day of June , 2007.

s/Jon C. Goldfarb

OF COUNSEL

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