IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

NORTHWEST SAVINGS BANK :

AND FINANCIAL SERVICES, :

: Civil Action No. 4: 09-CV-1416

Plaintiff, :

:

v. :

: (Judge McClure)

NS FIRST STREET LLC and 220 :

SOUTH ATHERTON :

STREET LLC, :

:

Defendants. :

:

MEMORANDUM

June 8, 2010

I. INTRODUCTION

This civil action was initiated by plaintiff Northwest Savings Bank and

Financial Services in the Court of Common Pleas of Centre County on June 19,

2009. Plaintiff has named as defendants NS First Street LLC and 2200 South

Atherton Street LLC. The case later was removed to this court upon the

defendants’ Notice of Removal, which was filed with this court on July 22, 2009. 

(Rec. Doc. No. 1). Removal was appropriate under 28. U.S.C. § 1441, as this court

has jurisdiction over the matter pursuant to 28 U.S.C. § 1332.

Case 4:09-cv-01416-YK Document 32 Filed 06/08/10 Page 1 of 12
2

II. PROCEDURAL HISTORY

In its complaint, plaintiff asserts against the above-named defendants one

count for damages and two counts for declaratory judgment. These counts arise

out of a lease agreement concerning a property located at 2200 South Atherton

Street, State College, Pennsylvania.

After the matter was removed to federal court, the defendants filed an

answer to the complaint on August 3, 2009. (Rec. Doc. No. 4). In their answer,

the defendants included eight affirmative defenses as well as counterclaims. Id. at

8-13. The plaintiff filed a reply to the defendants’ counterclaims on August 12,

2009. (Rec. Doc. No. 9).

On October 8, 2009, pursuant to Fed. R. Civ. P. 15(a), the plaintiff filed a

stipulation agreed to by the parties providing for the plaintiff’s filing of an

amended complaint (“First-Amended Complaint”). (Rec. Doc. No. 14). This court

issued an order on October 13, 2009, approving the stipulation to amend the

complaint. (Rec. Doc. No. 18). The plaintiff filed the first-amended complaint on

October 8, 2009 (Rec. Doc. No. 15), and the defendants filed an answer, with

affirmative defenses and counterclaims, to the first-amended complaint on October

27, 2009. (Rec. Doc. No. 19). On November 19, 2009, the plaintiff filed a reply to

the defendants’ counterclaims to the plaintiff’s first-amended complaint. (Rec.

Case 4:09-cv-01416-YK Document 32 Filed 06/08/10 Page 2 of 12
3

Doc. No. 22).

On October 13, 2009, plaintiff filed a “Motion to Hold Rent Monies in an

Escrow Account,” with a brief in support. (Rec. Doc. Nos. 16 and 17). The

defendants filed a brief opposing the plaintiff’s motion on October 28, 2009. (Rec.

Doc. No. 20). Plaintiff filed a reply brief on November 9, 2009. (Rec. Doc. No.

21). On January 6, 2010, this court denied plaintiff’s motion to hold rent monies in

escrow, finding that it would be improper for the court to accept such deposits or to

order such deposits into escrow. (Rec. Doc. No. 23 at 6-8).

On March 16, 2010, plaintiff filed a concurred-in motion for modification of

the then-controlling case management order. (Rec. Doc. No. 24). This court, by

an order dated March 17, 2010, granted the concurred-in motion. (Rec. Doc. No.

27). As part of our modified order dated March 17, 2010, this court, inter alia,

moved the case from the August 2010 trial list, placed the matter on the November

2010 trial list, and required that all fact discovery be completed on or before July 1,

2010. Id. at 2.

On May 14, 2010, plaintiff filed a “Motion to Compel Dates Certain for the

Depositions of Defendants,” with a brief in support. (Rec. Doc. Nos. 28 and 29). 

Plaintiff contends that it has attempted to obtain from defendants’ counsel dates for

deposing a David Ross and a Richard Becker, to no avail. (Rec. Doc. No. 29 at 2-

Case 4:09-cv-01416-YK Document 32 Filed 06/08/10 Page 3 of 12
4

3). In addition, plaintiff contends that sanctions are appropriate in the instant

matter in light of the “[d]efendants’ failure to cooperate with [p]laintiff in a good

faith effort to resolve this discovery dispute.” Id. at 3. The defendants have not

filed a brief in opposition, and the date for doing so has since passed.

As the matter is ripe for disposition, and based on the following, this court

will grant the plaintiff’s “Motion to Compel Dates Certain for the Depositions of

Defendants.” (Rec. Doc. Nos. 28).

III. STANDARD OF REVIEW

A. Discovery

Rule 26(b)(1) of the Federal Rules of Civil Procedure sets the contours for

discovery and provides that “[p]arties may obtain discovery regarding any

nonprivileged matter that is relevant to any party’s claim or defense - including the

existence, description, nature, custody, condition, and location of any documents or

other tangible things . . . .” The rule further states that “[r]elevant information need

not be admissible at the trial if the discovery appears reasonably calculated to lead

to the discovery of admissible evidence.” Id.

It is well-settled that Rule 26 establishes a liberal discovery policy. 

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); Hickman v. Taylor,

329 U.S. 495, 507-08 (1947); Great West Life Assurance Co. v. Levithan, 152

Case 4:09-cv-01416-YK Document 32 Filed 06/08/10 Page 4 of 12
5

F.R.D. 494, 497 (E.D. Pa. 1994). As a general rule, therefore, discovery is

permitted of any items that are relevant or may lead to the discovery of relevant

information. Hicks v. Big Bros./Big Sisters of Am., 168 F.R.D. 528, 529 (E.D. Pa.

1996); Transcontinental Fertilizer Co. v. Samsung Co., 108 F.R.D. 650, 652 (E.D.

Pa. 1985). Parties are permitted a significant discovery latitude “in order to ensure

that the case proceeds with ‘the fullest possible knowledge of the issues and facts

before trial.’” Ascenzi v. O'Brien, No. CV-05-1184, 2008 WL 205235, at *5 (M.D.

Pa. Jan. 23, 2008) (quoting Hickman v. Taylor, 329 U.S. 495, 501 (1947)

(Vanaskie, J.).

When one party refuses to comply with other parties’ legitimate discovery

requests, the aggrieved party “may move for an order compelling disclosure or

discovery.” Fed. R. Civ. P. 37(a)(1); see Fed. R. Civ. P 37(a)(3). The injured

party must also certify that it “has in good faith conferred or attempted to confer

with the person or party failing to make disclosure or discovery in an effort to

obtain it without court action.” Fed. R. Civ. P. 37(a)(1). According to this Court’s

local rules:

Counsel for movant in a discovery motion shall file as part of the

motion a statement certifying that counsel has conferred with counsel

for the opposing party in a good faith effort to resolve by agreement

the issues raised by the motion without the intervention of the court,

together with a detailed explanation why such agreement could not be

Case 4:09-cv-01416-YK Document 32 Filed 06/08/10 Page 5 of 12
6

reached. If part of the issues raised by the motion have been resolved

by agreement, the statement shall specify the issues so resolved and

the issues remaining unresolved.

Middle District Local Rule 26.3.

IV. DISCUSSION

I. Plaintiff’s Motion to Compel is Granted as Unopposed

Plaintiff’s counsel, on October 2, 2009, served notices of deposition

concerning a David Ross and Richard Becker upon defendants’ counsel. (Rec.

Doc. No. 29 at 2). On March 9, 2010, plaintiff’s counsel sent a letter to

defendants’ counsel concerning mediation and requesting particular days in April

of 2010 on which depositions might be scheduled. (Rec. Doc. No. 31, Exhibit A). 

Plaintiff’s counsel received no response. On April 6, 2010, plaintiff’s counsel sent

a follow-up letter to defendants’ counsel concerning scheduling a Rule 37

conference in April so as to confer about the mediation and potential deposition

dates. Plaintiff’s counsel also requested in this letter that defendants’ counsel

provide, in the alternative, dates certain for the depositions. Id., Exhibit B. On

April 14, 2010, defendants’ counsel responded as to the discovery issue. Plaintiff’s

counsel returned defense counsel’s call, leaving a message for defense counsel. 

Also on April 14, 2010, plaintiff’s counsel sent a letter to defense counsel in which

she responded to his voicemail message and asked that he provide her with dates

Case 4:09-cv-01416-YK Document 32 Filed 06/08/10 Page 6 of 12
7

certain for the relevant depositions by Friday, April 16, 2010. Id., Exhibit C.

In the week prior to the filing of the instant motion to compel and for

sanctions, defendants’ counsel apparently contacted plaintiff’s counsel concerning

dates certain for depositions, though no dates have been agreed upon. On

Wednesday, May 12, 2010, plaintiff’s counsel’s paralegal contacted defendants’

counsel, advising him that plaintiff’s counsel intended to file the instant motion, as

well as seek concurrence. Plaintiff contends that, in response to this request,

defense counsel left a message for plaintiff’s counsel’s paralegal indicating “that

he has not been able to send any e-mails to their office due to their firewall (it

should be noted that the office has never had a problem in the past receiving emails from Defendants’ counsel), that he would be faxing information to their

office, and provided two (2) dates in May for depositions.” (Rec. Doc. No. 29 at

3). Plaintiff contends that counsel has yet to receive any faxes from defense

counsel and that “[t]he Defendants’ refusal to provide Plaintiff with firm

deposition dates is a violation of their obligations under the rules of discovery.” 

Id.

Plaintiff also contends that defense counsel has violated Fed. R. Civ. P.

26(g) and 28 U.S.C. § 1927 by failing to cooperate in the discovery process. Rule

26(g) of the Federal Rules of Civil Procedure provides that “[e]very disclosure

Case 4:09-cv-01416-YK Document 32 Filed 06/08/10 Page 7 of 12
8

under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection

must be signed by at least one attorney of record in the attorney’s own name - or

by the party personally, if unrepresented - and must state the signer’s address, email address, and telephone number . . . .” Plaintiff’s counsel claims that, in the

course of discovery, defense counsel has made disclosures that did not contain a

signature and failed to respond to plaintiff’s counsel’s attempts to rectify the

omission. (Rec. Doc. No. 29 at 7).

Pursuant to 28 U.S.C. § 1927:

Any attorney or other person admitted to conduct cases in any court of the

United States or any Territory thereof who so multiplies the proceedings in

any case unreasonably and vexatiously may be required by the court to

satisfy personally the excess costs, expenses, and attorneys’ fees reasonably

incurred because of such conduct.”

Plaintiff claims that the defendants, during discovery, “have demonstrated a lack of

utter disregard for the Federal Rules of Civil Procedure.” (Rec. Doc. No. 29 at 10). 

In support, plaintiff points to the failure of defendants to provide dates certain for

depositions and the defendants’ violation of Fed. R. Civ. P. 26(g) by failing to

provide certification during document discovery. Id. Plaintiff also claims that

defendants have not responded to a Rule 37 conference request and have failed to

communicate with the plaintiff during the litigation. Id.

Case 4:09-cv-01416-YK Document 32 Filed 06/08/10 Page 8 of 12
9

Based upon this court’s review of the plaintiff’s filings, we conclude that a

good faith effort has been made on the part of its counsel to obtain the defendants’

discovery responses. Defendants have refused to provide plaintiff with the

information requested, namely firm deposition dates relating to two depositions

that are required to be taken prior to the July 1, 2010 fact discovery deadline

imposed by this court. Pursuant to Middle District Local Rule 7.6, the defendants’

failure to oppose the plaintiff’s brief in support of its motion to compel within the

required time rendered the motion unopposed. Therefore, we will grant plaintiff’s

motion to compel.

II. Plaintiff is Entitled to Reasonable Expenses 

Incurred in Making This Motion

As noted above, the sanctions for failure to make disclosure or cooperate in

discovery are provided for in Rules 37(a)(5) and 26(g)(3) of the Federal Rules of

Civil Procedure, as well as 28 U.S.C. § 1927. Defendants have failed to respond to

plaintiff’s discovery requests and even failed to file a response to the instant

motion to compel. Therefore, plaintiff shall have seven (7) days from the entry of

this order to submit evidence of reasonable expenses incurred in the preparation of

the instant motion, and the method for calculating those expenses.

Case 4:09-cv-01416-YK Document 32 Filed 06/08/10 Page 9 of 12
10

V. CONCLUSION

In light of the above, we will grant the plaintiff’s “Motion to Compel Dates

Certain for the Depositions of Defendants” (Rec. Doc. No.28) and order plaintiff,

within seven (7) days, to submit evidence of reasonable expenses incurred in the

preparation of the instant motion and the method for calculating those expenses.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

Case 4:09-cv-01416-YK Document 32 Filed 06/08/10 Page 10 of 12
11

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

NORTHWEST SAVINGS BANK :

AND FINANCIAL SERVICES, :

: Civil Action No. 4: 09-CV-1416

Plaintiff, :

:

v. :

: (Judge McClure)

NS FIRST STREET LLC and 220 :

SOUTH ATHERTON :

STREET LLC, :

:

Defendants. :

:

ORDER

June 8, 2010

In accordance with the accompanying memorandum, IT IS HEREBY ORDERED

THAT:

1. Plaintiff’s “Motion to Compel Dates Certain for the Depositions of

Defendants” (Rec. Doc. No.28) is GRANTED, as it is deemed unopposed. (Rec.

Doc. No. 28).

2. Defendant shall supply dates certain for the depositions of David Ross

and a Richard Becker within twenty (20) days from the date of this order. Failure

to timely answer shall cause the court to impose sanctions as appropriate, including

but not limited to attorneys’ fees and judgment in favor of the plaintiff and against

Case 4:09-cv-01416-YK Document 32 Filed 06/08/10 Page 11 of 12
12

the defendant as requested in the complaint.

3. Plaintiff is entitled to sanctions for defendant’s failure to make responses

to requested discovery.

4. Plaintiff’s counsel shall have ten (10) days from the entry of this order to

submit a statement of reasonable expenses, including attorney’s fees, incurred in

the preparation of the motion to compel and supporting briefs. The statement shall

be accompanied by supporting documentation. Defendants may file a response

thereto within ten (10) days after service of plaintiff’s statement of expenses. 

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

Case 4:09-cv-01416-YK Document 32 Filed 06/08/10 Page 12 of 12