IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

CALVIN FLUKER, RICARDO )

WRIGHT, BERYL JACKSON, )

TRACY MARTIN, LISA )

PITCHFORD, KIMBERLY LOVE, )

)

Plaintiffs, )

)

v. ) CIVIL ACTION NO.:

) 2:06cv785-MHT

U.S. FOODSERVICE, INC. and )

U.S. FOODSERVICE, INC. - )

MONTGOMERY DIVISION, )

)

Defendants. )

DEFENDANT’S RESPONSE TO

PLAINTIFFS’ MOTION TO COMPEL

Defendant U.S. Foodservice, Inc. responds to plaintiffs’ Motion to Compel

as follows:

1. The undersigned has been talking with plaintiffs’ counsel since

approximately March 2006 (before this lawsuit was filed) regarding attempting to

mediate all claims. Plaintiffs’ counsel expressed interest in mediation, and they

even discussed selecting Fern Singer as mediator. Defense counsel explained to

plaintiffs’ counsel that responding to paper discovery for plaintiffs would be timeconsuming and expensive and suggested mediation prior to responding to

discovery. (See, e.g., emails in January 2007, attached as Exhibit A).

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2. After receiving plaintiffs’ counsel’s letter dated March 15, 2007,

defense counsel again contacted plaintiffs’ counsel regarding whether they were

interested in mediation and again discussed postponing discovery until after the

parties tried to mediate. Plaintiffs’ counsel informed defense counsel that they

were still checking with their clients.

3. In approximately April 2007, plaintiffs’ counsel informed defense

counsel that only some of the plaintiffs were interested in mediation and wanted to

know if defendant was still interested in mediation if it would involve fewer than

all plaintiffs. (See Exhibit B)

4. The undersigned then received the letter dated May 3, 2007, from

plaintiffs’ counsel, which was very confusing since defense counsel had not

received the April 12, 2007, letter referenced. (See Exhibit C – the fax

confirmation sheet produced by plaintiffs’ counsel showed the fax line was busy

and did not transmit.)

5. On May 7, 2007, defense counsel called and emailed to explain they

were still under the assumption that some plaintiffs were still interested in

mediation, and that if not, defendant would request a reasonable time to respond to

discovery requests. (See Exhibit B)

6. On May 11, 2007, the undersigned resigned from Constangy, Brooks

& Smith and is now with the Alabama office of Jackson Lewis. Defendant

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requested in writing that Constangy, Brooks & Smith transfer all paper and

electronic files to the undersigned at Jackson Lewis. However, as explained to

plaintiffs’ counsel, despite several attempts to obtain all the electronic information,

which is needed to respond to the discovery requests, all information has not yet

been transferred.

1

Thus, defendant disagrees with the characterization by plaintiffs that

discovery requests have been ignored. Rather, the delay has been due to

determining whether plaintiffs were interested in mediation, a faxed letter not

received by defense counsel, and technological glitches in transferring electronic

information when the undersigned changed firms. As the undersigned still does

not have the electronic information, and there are at least seven sets of discovery,

defendant respectfully requests at least thirty (30) days to respond to the discovery

requests.

1

The undersigned is not insinuating that Constangy, Brooks & Smith is intentionally trying to

withhold information. Rather, the glitch appears to be due to a change in computer systems

within Constangy, and some information was stored on the old system and some is on the new

system, and there appears to be some technical difficulty in capturing all the electronic

information.

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Respectfully submitted,

s/ Tammy L. Baker

Tammy L. Baker (ASB-9522-B62T)

E-Mail: BakerT@jacksonlewis.com

JACKSON LEWIS LLP

2001Park Place North

Suite 650

Birmingham, Alabama 35203

Phone: (205) 332-3106

Fax: (205) 332-3131

COUNSEL FOR DEFENDANT

CERTIFICATE OF SERVICE

This is to certify that on June 22, 2007, the undersigned electronically filed

the foregoing with the Clerk of the Court using the CM/ECF system that will send

notification of such filing to the following:

Jon C. Goldfarb, Esq.

Maury S. Weiner, Esq.

Ethan R. Dettling, Esq.

Melissa N. Tapp, Esq.

Wiggins, Childs, Quinn & Pantazis, LLC

301 19

th

Street North

Birmingham, AL 35203

/s/ Tammy L. Baker

Counsel of Record

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