BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO COMPEL PAGE 1 

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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

RICHARD SHARIF, et al., § 

 § 

 Plaintiffs, § 

 § 

v. § CIVIL ACTION NO. 3:05-CV-01367-B 

 § 

WELLNESS INTERNATIONAL § ECF 

NETWORK, LTD. a/k/a WIN, § 

et al., § 

 § 

 Defendants. § 

BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO COMPEL 

INITIAL DISCLOSURES, RESPONSES TO REQUESTS FOR PRODUCTION, 

AND ANSWERS TO INTERROGATORIES

 Defendants, Wellness International Network, Ltd., WIN Network, Inc., Ralph Oats, 

Cathy Oats, and Sheri Matthews, file this Brief in Support of their Motion to Compel Initial 

Disclosures, Responses to Requests for Production, and Answers to Interrogatories. 

I. 

STATEMENT OF POSITION

 Plaintiffs are engaging in dilatory conduct and refusing to cooperate in discovery. They 

have not served their Initial Disclosures, which the Court ordered them to serve on September 1, 

2006. Recently, they refused to provide any response whatsoever to Defendants’ First Requests 

for Production and First Sets of Interrogatories to each of the Plaintiffs, which were due on 

December 20, 2006. 

 Defendants ask this Court for an order compelling Plaintiffs to serve their Initial 

Disclosures and to respond to Defendants’ First Requests for Production and First Sets of 

Interrogatories to each of them. Defendants also ask this Court to reimburse them for attorney 

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fees and costs incurred in securing this relief from the Court, and to appropriately sanction 

Plaintiffs for failing to timely serve their Initial Disclosures. 

II. 

AUTHORITY

 FEDERAL RULE OF CIVIL PROCEDURE 26(a) requires each party to disclose certain 

information without request.1 FEDERAL RULE OF CIVIL PROCEDURE 37 authorizes a district court 

to compel disclosure and award appropriate sanctions for a party’s failure to make required 

disclosures.2

 The FEDERAL RULES OF CIVIL PROCEDURE also permit a district court to compel 

responses to discovery if a party does not respond to an interrogatory submitted under FEDERAL 

RULE OF CIVIL PROCEDURE 33 or respond to a request for production under FEDERAL RULE OF 

CIVIL PROCEDURE 34.3 Parties may obtain discovery about any matter that is not privileged and 

is relevant to the subject matter of the case.4 Information is discoverable if it appears 

“reasonably calculated to lead to the discovery of admissible evidence.”5

 

1

 FED. R. CIV. P. 26(a).

2

 FED. R. CIV. P. 37.

3

 See id.

4

 FED. R. CIV. P. 26(b)(1).

5

 Id. 

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III. 

FAILURE TO SERVE INITIAL DISCLOSURES

 The parties agreed to serve Initial Rule 26 Disclosures on or before September 1, 2006.6

 

Defendants timely served their Disclosures; Plaintiffs did not. Defendants’ counsel has asked at 

least three times when Plaintiffs expect to serve their Initial Rule 26 Disclosures, but has 

received no response.7

 On December 27, 2006, counsel for Defendants sent an e-mail to counsel 

for Plaintiffs requesting them to serve the overdue disclosures, the overdue response to 

Defendants’ First Set of Interrogatories, the overdue response to Defendants’ First Request for 

Production, and to produce responsive documents and tangible items by Wednesday, January 10, 

2007.8

 Plaintiffs refused to comply with any part of that request.9 It is evident that, absent a 

court order, Plaintiffs do not intend to ever serve any Initial Rule 26 Disclosures. 

IV. 

INTERROGATORIES AND REQUESTS FOR PRODUCTION.

 On November 20, 2006, Defendants served, inter alia, First Requests for Production and 

First Sets of Interrogatories to each Plaintiff.10 Under the FEDERAL RULES OF CIVIL PROCEDURE, 

the deadline for Plaintiffs to respond to these requests was December 20, 2006. Plaintiffs failed 

to serve any objections or responses to these requests for production or interrogatories. Any 

 

6

 See Joint Status Report [Docket No. 34], filed on August 9, 2006, at 5 (“The Parties agree that mandatory initial 

disclosures must be served on all other parties on or before September 1, 2006.”). 

7

 See Appendix to Motion to Compel (“Appendix”) at 3, 4 (Declaration of John F. Martin, ¶¶ 2, 3, 6), 5 (September 

26, 2006 fax to Michael Cohen). 

8

 See Certificate of Conference, infra. 

9

 See id.

10 See Appendix at 15-22 (First Set of Interrogatories to Richard Sharif), 23-30 (First Set of Interrogatories to 

Abdul and Shaheen Rashid); 31-38 (First Set of Interrogatories to Waqar and Shafqut Khan), 39-46 (First Set of 

Interrogatories to Soad Wattar, Haifa Kaj, and Ragda Sharifeh), 47-95 (First Request for Production to Richard 

Sharif), 96-136 (First Request for Production to Rashids), 137-180 (First Request for Production to Khans), and 

181-224 (First Request for Production to Wattar, Kaj, and Sharifeh). 

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objections Plaintiffs may have to these requests for production or interrogatories are therefore 

waived.11 On December 27, 2006, counsel for Defendants sent an e-mail to counsel for Plaintiffs 

requesting them to serve the overdue disclosures, the overdue response to Defendants’ First Set 

of Interrogatories, the overdue response to Defendants’ First Request for Production, and to 

produce responsive documents and tangible items by Wednesday, January 10, 2007.12 On 

January 9, 2007, counsel for Plaintiffs responded that Plaintiffs would not comply with that 

request.13 

V. 

REQUEST FOR SANCTIONS, COSTS AND ATTORNEYS’ FEES

 Under Rule 37(a)(4)(A), Defendants ask this Court to award sanctions against Plaintiffs 

for their failure to serve disclosures and respond to discovery requests. Defendants ask this 

Court to award them their reasonable costs and attorneys’ fees in preparing, filing, and 

presenting this Motion to Compel before the Court. Defendants attach a Declaration of John F. 

Martin in support of its request for its reasonable costs and attorneys’ fees.14

VI. 

REQUEST FOR APPROPRIATE SANCTIONS FOR 

FAILING TO TIMELY SERVE DISCLOSURES.

 Under Rule 37(c)(1), a party may move for sanctions if the other party refuses to timely 

disclose information required by Rule 26(a) without substantial justification.15 Defendants 

 

11 AMS Staff Leasing, Ltd. v. Associated Contract Truckmen, Inc., 2004 U.S. Dist. LEXIS 29948, at *2 (N.D. Tex. 

2004) (Stickney, M.J.). 

12 See Certificate of Conference, infra. 

13 See id.

14 See Appendix at 3-4 (Mr. Martin’s Declaration, ¶¶ 6-9). 

15 FED. R. CIV. P. 37(c)(1); see Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co., 175 F.3d 1221, 1229 (10th

Cir. 1999); McClain v. Metabolife Int’l, Inc., 193 F.Supp.2d 1252, 1258-59 (N.D. Ala. 2002). 

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request that the Court appropriately sanction Plaintiffs as contemplated in Rule 37, by 

prohibiting Plaintiffs from calling any witness at trial or in any pre-trial procedure that they 

should have disclosed under their Rule 26(a)(1) response or from offering any damage evidence 

that they otherwise should have disclosed under a Rule 26(a)(1) response.16

VII. 

PRAYER

 For the reasons stated above, the Defendants pray that the Court grant their Motion to 

Compel, that the Court issue an order compelling Plaintiffs to comply with the discovery 

requests discussed in this Motion to Compel, that the Court award the Defendants their 

reasonable costs and attorneys’ fees incurred in preparing, filing, and presenting this Motion to 

Compel before the Court, that the Court appropriately sanction Plaintiffs for their dilatory 

conduct, and that the Court grant the Defendants any other relief to which they are entitled. 

 

16 FED. R. CIV. P. 37(c)(1); see, e.g., AMS Staff Leasing, Ltd. v. Associated Contract Truckmen, Inc., 2004 U.S. 

Dist. LEXIS 29948, at *2 (N.D. Tex. 2004) (Stickney, M.J.) (ordering that a party who failed to timely serve its 

disclosures was prohibited from calling any witness at trial or in any pre-trial procedure that they should have 

disclosed under their Rule 26(a)(1) response or from offering any damage evidence that they otherwise would have 

disclosed under a Rule 26(a)(1) response). 

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 Respectfully submitted, 

By: /s/ John F. Martin____________ 

 G. MICHAEL GRUBER

 Texas State Bar No. 08555400 

 BRIAN N. HAIL

 Texas State Bar No. 08705500 

 JOHN F. MARTIN

 Texas State Bar No. 24002530 

 MICHAEL J. LANG

 Texas State Bar No. 24036944 

GRUBER HURST JOHANSEN & HAIL LLP

Fountain Place 

1445 Ross Avenue, Suite 4800 

Dallas, Texas 75202 

(214) 855-6800 

(214) 855-6808 fax 

ATTORNEYS FOR DEFENDANTS 

CERTIFICATE OF CONFERENCE

 The undersigned hereby certifies that he attempted to confer with counsel for Plaintiffs, 

via e-mail, on the relief requested in this motion on December 27, 2006. Counsel for Defendants 

gave counsel for Plaintiffs the opportunity to serve the overdue disclosures, the overdue response 

to Defendants’ First Set of Interrogatories, the overdue response to Defendants’ First Request for 

Production, and to produce responsive documents and tangible items by Wednesday, January 10, 

2007. On January 9, 2007, counsel for Plaintiffs responded, and refused to comply any part of 

the request, and indicated opposition to the relief sought in this motion. 

 /s/ John F. Martin_____________________ 

John F. Martin 

Michael J. Lang 

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CERTIFICATE OF SERVICE

 This is to certify that on this 10th day of January, 2007, a true and correct copy of the 

foregoing document has been forwarded to all counsel of record in accordance with Rule 5 of the 

FEDERAL RULES OF CIVIL PROCEDURE and/or N.D. TEXAS MISCELLANEOUS ORDER No. 61 

(service on counsel who have consented to electronic service). 

Michael Curletti, Esq. 

1001 Heather Lane 

Munster, Indiana 46321 

 

Robert Plotkin, Esq. 

The Robert Plotkin Law 

Firm, P.C. 

113 East Bellevue Place 

Chicago, Illinois 60611 

 

E. Leon Carter, Esq. 

Munck Butrus, P.C. 

13155 Noel Road 

900 Galleria Tower Three 

Dallas, Texas 75240 

 

Michael B. Cohen, Esq. 

35 E. Wacker Drive, Suite 

595 

Chicago, Illinois 60601 

Brad Repass, Esq. 

Haynie Rake & Repass, 

P.C. 

14651 Dallas Parkway, 

Suite 136 

Dallas, Texas 75254 

 

Counsel for Plaintiffs 

 /s/ John F. Martin_____________________ 

John F. Martin 

Michael J. Lang 

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