1 Defendant’s motion to amend its motion to compel (Doc. 19) is GRANTED as is

its motion to supplement its motion to compel (Doc. 18). 

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DEBRA KING, :

Plaintiff, :

vs. : CA 09-0503-WS-C

ALABAMA DEPARTMENT OF :

PUBLIC HEALTH,

:

Defendant.

ORDER

This cause is before the Court on defendant’s motion to compel discovery and motion

for extension of time to file its motion for summary judgment (Doc. 17), as supplemented

(Doc. 18) and amended (Doc. 19),1

 plaintiff’s notice of service of discovery responses (Doc.

20), plaintiff’s response to defendant’s motion to compel (Doc. 21), and defendant’s reply

(Doc. 22). Based upon consideration of the foregoing pleadings, and all other pertinent

material in this file, this order is entered pursuant to 28 U.S.C. § 636(b)(1)(A) and Local Rule

72.2(a) & (c)(1). 

Case 1:09-cv-00503-WS-C Document 25 Filed 05/05/10 Page 1 of 11
2 Based on the undersigned’s experience with the different interpretations

practitioners have given to the mandate that they make a good faith effort to resolve discovery

disputes before bringing them before the Court, some guidance is deemed necessary. All three

referenced sections of the Federal Rules of Civil Procedure employ the same language, that the

motions be accompanied by a certification that the movant “has in good faith conferred or

attempted to confer” with other affected parties or persons, prior to seeking the Court’s help in

resolving discovery disputes. In this context, confer means “to have a conference; compare and

exchange ideas; meet for discussion; converse.” Webster’s New World Dictionary (College

2

FINDINGS OF FACT

1. A scheduling order was entered in this case on December 9, 2009, same

reading, in relevant part, as follows:

2. DISCOVERY COMPLETION DATE. All discovery is to be

completed on or before June 2, 2010. Requests for extension will be viewed

with great disfavor and will not be considered except upon a showing (1)

that extraordinary circumstances require it and (2) that the parties have

diligently pursued discovery.

For all actions, “completed” means that all depositions have been taken;

interrogatories, requests for admissions, and requests for production served and

responded to; physical inspections and testing concluded; physical and mental

examinations concluded; and motions to compel filed.

...

11. DISCOVERY MOTIONS. The following requirements pertain

to discovery motions filed in this Court:

a. Conferencing by Counsel. The conferencing requirement

contained in Rules 26(c)(1), 37(a)(1), and 37(d)(1)(B), Fed.R.Civ.P., will be

strictly enforced. This requirement will also apply to a motion for physical

and mental examination pursuant to Fed.R.Civ.P. 35(a) and a motion to

determine the sufficiency of a request for an admission pursuant to

Fed.R.Civ.P. 36(a). Any such motion not containing the required certification

will be stricken.2

Case 1:09-cv-00503-WS-C Document 25 Filed 05/05/10 Page 2 of 11
Edition, 1968). A conference is “[a] meeting of several persons for deliberation, for the

interchange of opinion, or for the removal of differences or disputes.” Black’s Law Dictionary,

Rev. 4th ed. (1968). Therefore, simply corresponding with opposing counsel is not considered a

good-faith attempt to confer or have a conference to resolve discovery disputes.

3

b. Time of Filing; Form. A motion for protective order pursuant

to Fed.R.Civ.P. 26(c), a motion for physical and mental examination pursuant

to Fed.R.Civ.P. 35(a), a motion to determine sufficiency pursuant to

Fed.R.Civ.P. 36(a), and a motion to compel pursuant to Fed.R.Civ.P. 37 shall

be brought in a timely manner so as to allow sufficient time for the completion

of discovery according to the schedule set by the Court. Any such motion

shall quote in full (1) each interrogatory, request for admission or request for

production to which the motion is addressed, or otherwise identify specifically

and succinctly the discovery to which objection is taken or from which a

protective order is sought, and (2) the response or the objection and grounds

therefor, if any, as stated by the opposing party. Unless otherwise ordered by

the Court, the complete transcripts or discovery papers are not to be filed with

the Court unless the motion cannot be fairly decided without reference to the

complete original.

...

12. DISPOSITIVE MOTIONS. The Court considers dispositive

motions, particularly summary judgment motions, to be appropriate methods

for pretrial resolution of claims or defenses, or portions thereof, that do not

contain disputed material facts, thus reducing the triable issues. In order to

ensure that these issues are presented in sufficient time for the Court to reach

a decision prior to trial, the parties shall identify those claims or defenses that

do not require a trial in a properly-supported dispositive motion, filed not later

than June 23, 2010.

(Doc. 15, ¶¶ 2, 11 & 12 (footnote and emphasis in original)) In setting the discovery

completion date for June 2, 2010 (id. at ¶ 2), the undersigned accorded the parties one month

more of discovery than was requested in the Rule 26(f) report (compare id. with Doc. 14, at

Case 1:09-cv-00503-WS-C Document 25 Filed 05/05/10 Page 3 of 11
3 It is also noted that the parties requested a dispositive motion filing date of May

31, 2010 (Doc. 14, ¶ 10), whereas the Court set the deadline for filing dispositive motions at

June 23, 2010 (Doc. 15, ¶ 12).

4

¶ 4.(C) (“Discovery will be commenced in time to be completed by May 7, 2010.”)).3

2. Almost five months passed in this case following entry of the scheduling order

before the next entry on the docket sheet. (Compare Doc. 15 with Docket Sheet) The docket

sheet reflects that on April 30, 2010, plaintiff’s counsel filed notice of the serving of

interrogatories, requests for admissions, and requests for production of documents (Doc. 16)

in compliance with this Court’s Local Rule 5.5(d). See SD ALA LR 5.5(d) (“Whenever any

discovery material is served, counsel shall contemporaneously deliver to the clerk a notice

identifying the date of service and the nature of the material served or, the first and last page

of the document served including the certificate of service.”). 

3. Three days later, on May 3, 2010, counsel for the defendant filed the instant

motion to compel discovery and motion for extension of time to file its motion for summary

judgment. (Doc. 17) Within the context of this motion, defendant also seeks the striking of

the foregoing discovery served by plaintiff. (See id. at 4 (“Plaintiff’s service on Defendant

for discovery is faulty. . . . Rule 5(2)(E) states, ‘[a] paper is served under this rule by: sending

it by electronic means if the person consented in writing–in which event service is complete

upon transmission, but is not effective if the serving party learns that it did not reach the

person to be served.’ Therefore, since Defendant never agreed in writing to receiving

Case 1:09-cv-00503-WS-C Document 25 Filed 05/05/10 Page 4 of 11
4 This document simply seeks to supplement the defendant’s motion with a copy of

plaintiff’s discovery requests. (Doc. 18, Exhibit F) As previously indicated, this motion is

GRANTED.

Given that defense counsel had in her possession plaintiff’s discovery requests as of May

3, 2010 (see id.), thirty days prior to the present close of discovery on June 2, 2010 (compare id.

with Doc. 15, ¶ 2), and the docket sheet in this case reflects proper notice of the service of such

discovery (Doc. 16), any alleged “technical” violation of Rule 5(b)(2)(E)’s requirement that the

person being served with the paper must consent in writing is overcome by and made harmless

by the provisions of Rule 5(b)(3). See Fed.R.Civ.P. 5(b)(3) (“If a local rule so authorizes, a party

may use the court’s transmission facilities to make service under Rule 5(b)(2)(E).”). As

previously indicated, Local Rule 5.5(d) requires parties to contemporaneously deliver to the

clerk a notice identifying the date of service of discovery material. The undersigned finds clearly

implicit in this requirement an invitation to parties to use the court’s transmission facilities to

make service under Rule 5(b)(2)(E). Accordingly, the undersigned DENIES defendant’s motion

to strike plaintiff’s propounded discovery (see Doc. 17, at 4) and ORDERS defendant to file its

responses/objections to that discovery not later than June 2, 2010, thirty days to the date

following defense counsel’s admitted receipt of plaintiff’s written discovery.

5 The attached amended motion to compel discovery simply adds the following

conclusory statement on page 5: “The undersigned certifies that she has in good faith conferred

or attempted to confer with counsel prior to seeking the Court’s help in resolving this discovery

dispute.” (Doc. 19, Defendant’s Amended Motion to Compel Discovery, Motion for Extension

to File Summary Judgment, at 5) 

5

Plaintiff’s request for discovery, Plaintiff’s service is not effective and should be stricken.”))

Later during the day on May 3, 2010, defendant filed a motion to supplement its motion to

compel4

 (Doc. 18) and a motion to amend its motion to compel to include the certification

required by this Court’s scheduling order and the federal rules of civil procedure5

 (Doc. 19).

4. Plaintiff responded quickly to defendant’s motion to compel, filing, on May

3, 2010, her notice of serving discovery responses to defendant’s interrogatories and requests

for production (Doc. 20), along with her response to the motion to compel (Doc. 21). In the

response, plaintiff’s counsel contends that his delay in serving discovery responses was not

Case 1:09-cv-00503-WS-C Document 25 Filed 05/05/10 Page 5 of 11
6

intentional, but the result of the press of business in other cases, and that defendant has not

been prejudiced in any manner by receiving King’s discovery responses on May 3, 2010. (Id.

at 1) The response concludes with the following paragraph:

Plaintiff does not object to any request on the part of defendant if it

feels that additional discovery time is needed herein due to plaintiff’s ten (10)

day delay in submitting responses that defendant already has in its possession.

Nor does plaintiff object to an enlargement of the time for summary judgment

filings, if discovery is extended. In fact, given plaintiff’s counsel’s heavy

briefing schedule over the next three to four weeks, plaintiff would join in a

request for a 30 day extension of discovery and the filing of dispositive

motions.

(Id., ¶ 5) 

5. By its reply, defendant has established that the plaintiff did not sign her

interrogatory responses. (Doc. 22, Exhibit 1, at 6 (signature of plaintiff’s counsel only))

CONCLUSIONS OF LAW

1. “Rule 16 of the Federal Rules of Civil Procedure authorizes the court to enter

pretrial scheduling orders, which set dates for the completion of discovery, the hearing of

dispositive motions, trial, and other matters.” Matrix Motor Co., Inc. v. Toyota Jidosha

Kabushiki Kaisha, 218 F.R.D. 667, 671 (C. D. Cal. 2003). The broad discretion set forth in

Rule 16 “is necessary to preserve the integrity and purpose of the pretrial scheduling order

and to allow the trial judge qualitative and quantitative management over a judicial

proceeding from an early stage in order to reduce costs and delays.” Gavenda v. Orleans

County, 1996 WL 377091, *1 (W.D. N.Y. 1996) (footnotes omitted); see Zivkovic v.

Case 1:09-cv-00503-WS-C Document 25 Filed 05/05/10 Page 6 of 11
7

Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (“‘The district court

is given broad discretion in supervising the pretrial phase of litigation, and its decisions

regarding the preclusive effect of a pretrial order . . . will not be disturbed unless they

evidence a clear abuse of discretion.’”). 

2. A Rule 16(b) scheduling order “may be modified only for good cause and with

the judge’s consent.” Fed.R.Civ.P. 16(b)(4). “This good cause standard precludes

modification unless the schedule cannot ‘be met despite the diligence of the party seeking

the extension.’” Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1418 (11th Cir. 1998)

(citations omitted).

3. The Rule 16 order in this case clearly set the response time for interrogatories

and requests for production of documents thirty (30) days following service of same. (Doc.

15, ¶ 10.a. & d.) The contents of the Rule 16(b) scheduling order are consistent with the

requirements of the Federal Rules of Civil Procedure. Compare id. with Fed.R.Civ.P.

33(b)(2) (“The responding party must serve its answers and any objections within 30 days

after being served with the interrogatories.”) and Fed.R.Civ.P. 34(b)(2)(A) (“The party to

whom the request is directed must respond in writing within 30 days after being served.”).

4. While it is clear from the motion to compel and plaintiff’s response thereto that

plaintiff untimely filed her responses to defendant’s written discovery (compare Doc. 17, at

1 (“Defendant’s counsel served discovery on Plaintiff on March 24, 2010, making such

Case 1:09-cv-00503-WS-C Document 25 Filed 05/05/10 Page 7 of 11
8

discovery due on April 23, 2010.”) with Doc. 21, at 2 (plaintiff’s counsel admission of a tenday delay in submitting responses)), the undersigned declines to sanction plaintiff for this

delay (see Doc. 17, at 4) given defendant’s failure, on March 24, 2010, to contemporaneously

file its notice of serving such discovery as required by Local Rule 5.5(d), as well as defense

counsel’s failure to state anywhere in the motion to compel, as supplemented and amended,

that she specifically informed plaintiff’s counsel that she would file a motion to compel on

a date certain should she not receive plaintiff’s responses to propounded written discovery.

5. In light of plaintiff’s responses to defendant’s propounded written discovery

(Doc. 20), the undersigned deems defendant’s motion to compel MOOT except that plaintiff

need be COMPELLED to sign her interrogatory responses (see Doc. 22). Interrogatories

must be answered by the party to whom they are directed under oath and must be signed by

the person making the answers. Fed.R.Civ.P. 33(b)(3) & (5). In addition, “the attorney who

objects must sign any objections.” Fed.R.Civ.P. 33(b)(5). Here, plaintiff Debra King did not

sign her answers to the interrogatories propounded by defendant. See Estrada v. Palm Beach

Metro Transportation, LLC, 2008 WL 1995097, *1 (S.D. Fla. 2008) (“Federal Rule of Civil

Procedure 33 clearly states that Interrogatory Responses must be answered ‘under oath.’”);

Cherenfant v. Nationwide Credit, Inc., 2004 WL 5315889, *1 n.2 (S.D. Fla. 2004) (“Federal

Rule of Civil Procedure 33(b)(3) requires a party to sign interrogatory answers ‘under

oath.’”). Accordingly, plaintiff is ORDERED to sign her interrogatory responses under oath

Case 1:09-cv-00503-WS-C Document 25 Filed 05/05/10 Page 8 of 11
6 The undersigned gets no sense from the pleadings filed on May 3, 2010 (Docs.

17-21), or May 4, 2010 (Doc. 22), that the parties have diligently pursued discovery in this

matter. Rather, it appears to the undersigned that the parties waited for more than three months

after entry of the Rule 16(b) scheduling order before beginning to engage in written discovery

(compare Doc. 15 (Rule 16(b) scheduling order entered on December 9, 2009) with Doc. 17, at 1

(defendant alleges a service date for written discovery of March 24, 2010)) and it also appears

that no depositions have been taken. Therefore, the defendant’s request that the undersigned

extend the discovery deadline for it only (Doc. 17, at 4) is DENIED.

7 The undersigned REJECTS any suggestion by the defendant that plaintiff be

sanctioned for “delaying” her deposition. (See Doc. 17, at 4 (“Rule 30(d)(2) states that, ‘[t]he

9

not later than the close of business on May 7, 2010. 

6. The parties have a month of discovery remaining in this case. (See Doc. 15, ¶

2) There certainly remains a sufficient amount of time for defendant to depose plaintiff and

for other depositions to be taken before that deadline passes and prior to the deadline for

filing dispositive motions. The undersigned declines to extend either period of time now

because there has not been a showing of the good cause necessary to extend the discovery

deadline (see Doc. 15, ¶ 2 (“Requests for extension will be viewed with great disfavor and

will not be considered except upon a showing (1) that extraordinary circumstances

require it and (2) that the parties have diligently pursued discovery.”))6

 and, in addition,

defendant can make no showing at this point in time that it will not be able to file a timely

summary judgment motion on or before June 23, 2010 (see Doc. 15, ¶ 12). 

7. The sole “relief” the undersigned accords defendant, other than as noted above,

is that plaintiff is ORDERED to sit for her deposition first in this action and must sit for her

deposition on or before May 19, 2010.

7

 Plaintiff’s counsel will simply have to take time out

Case 1:09-cv-00503-WS-C Document 25 Filed 05/05/10 Page 9 of 11
court may impose an appropriate sanction–including the reasonable expenses and attorney’s fees

incurred by any party–on a person who impedes, delays, or frustrates the fair examination of the

deponent.’”)) Plaintiff ‘s conduct is not sanctionable under Rule 30(d)(2) both because the

defendant, by its admission, agreed to the postponement of plaintiff’s deposition (Doc. 17, at 2

(“Plaintiff’s counsel then suggested [on April 28, 2010] that we postpone the deposition, so that

Defendant could have the discovery responses. Defendant’s counsel, attempting to be

professional and reasonable agreed.” (emphasis supplied)) and because this rule directs itself to

the sanctioning of conduct which actually occurs during the course of a deposition, compare

Fed.R.Civ.P. 30(d)(2) with Sicurelli v. Jeneric/Pentron, Inc., 2005 WL 3591701, *8 (2005)

(“[T]he imposition of sanctions under Rule 30(d)[(2)] requires only that the attorney’s conduct

frustrated the fair examination of the deponent.”), report & recommendation adopted, 2006 WL

681212 (E.D. N.Y. 2006).

8 Defendant is to make its responses/objections to the propounded written

discovery not later than the official close of discovery, June 2, 2010.

10

of his busy briefing schedule to defend plaintiff’s deposition in this case. After the taking of

plaintiff’s deposition, the parties will still have a two-week period to complete any other

depositions that are necessary in this action. 

CONCLUSION

The Magistrate Judge finds defendant’s motion to compel responses to its propounded

written discovery (Doc. 17) MOOT in light of the plaintiff’s May 3, 2010 notice of filing of

her responses to the propounded discovery (see Doc. 20) except that plaintiff is

ORDERED/COMPELLED to sign her interrogatory responses under oath not later than the

close of business on May 7, 2010. The defendant’s requests that the discovery deadline be

extended for its purposes alone and that the deadline for filing dispositive motions be

extended (see Doc. 17, at 1 & 4) are DENIED. Finally, the defendant’s request that

plaintiff’s propounded written discovery be stricken is DENIED.

8

 The undersigned

Case 1:09-cv-00503-WS-C Document 25 Filed 05/05/10 Page 10 of 11
11

DECLINES to sanction plaintiff in the manner suggested by defendant, that is, by imposition

of expenses and fees (see Doc. 17, at 1 & 4); instead, the sole relief to be granted to

defendant in this matter, beyond ordering plaintiff to sign her interrogatory responses under

oath, is that the undersigned ORDERS plaintiff to sit for her deposition first and that this

deposition take place on or before May 19, 2010.

DONE and ORDERED this the 5th day of May, 2010. 

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00503-WS-C Document 25 Filed 05/05/10 Page 11 of 11