Free Motion for Discovery - District Court of Delaware - Delaware

Case 1:07-cv-00484-JJF-LPS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MACSTEEL INTERNATIONAL USA CORP., Plaintiff, v. M/V DOBRUSH in rem, her engines, boilers, etc., WESTERN BULK CARRIERS A.S., and COMMERCIAL FLEET OF DONBASS, Defendants. : : : : : : : : : : :

Civil Action No. 07-484-JJF-LPS

MOTION TO COMPEL DISCOVERY Plaintiff Macsteel International USA Corp. hereby moves, pursuant to paragraph 4 of the Rule 16 Scheduling Order dated October 16, 2007 and pursuant to Rule 37 of the Federal Rules of Civil Procedure, to compel defendant Commercial Fleet of Donbass ("Donbass") to comply with legitimate discovery demands served herein on November 9, 2007. The grounds for the motion is set forth below. 1. Fed.R.Civ.P. 37 provides in pertinent part: Failure to Make Disclosure or Cooperate in Discovery; Sanctions (a) Motion For Order Compelling Disclosure or Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling disclosure or discovery as follows: *** ...if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request .... ***

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(4) Expenses and Sanctions (A) If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees.... *** (d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request of Inspection. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, or ...(3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule.... In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. 2. On November 9, 2007, plaintiff served and filed its Request for Production of Documents (see copy attached hereto as Exhibit "A"). Apart from producing copies of two (2) survey reports, defendant Donbass has not responded to this documentary discovery nor has it objected thereto. The time for responses and/or objections expired on December 9, 2007. 3. On November 9, 2007, plaintiff served and filed its Notice of Deposition seeking to depose defendant Donbass by the Master and Chief Mate of the M.V. DOBRUSH. That deposition was scheduled for December 18, 2007. A copy of the

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Notice of Deposition is attached hereto as Exhibit "B." Defendant Donbass failed to produce any witnesses for deposition on that date and no objections or requests for adjournment were made or received. 4. Plaintiff certifies that reasonable good faith efforts were made to reach

agreement on this discovery issue and thereby avoid court intervention. A copy of the January 31, 2008 letter e-mailed to Donbass' counsel is attached hereto as Exhibit "C." No response to that letter was received, although a response was solicited. For the foregoing reasons, plaintiff respectfully requests that this Court issue an Order compelling defendant Donbass' compliance with the aforesaid discovery demands and that plaintiff be awarded the reasonable expenses incurred in making this motion, including attorneys' fees and that plaintiff have such other, further and different relief as to this Court may seem just and proper.

HOLLSTEIN KEATING CATTELL JOHNSON & GOLDSTEIN P.C. By: /s/ Lynne M. Parker Lynne M. Parker, Bar No. 2811 1201 N. Orange Street, Suite 730 Wilmington, Delaware 19801 (302) 884-6700 Attorneys for Plaintiff LEAD COUNSEL James F. Sweeney, Esquire Nicoletti Hornig & Sweeney Wall Street Plaza 88 Pine Street, 7th Floor New York, NY 10005

Dated: February 6, 2008

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CERTIFICATE OF SERVICE I, Lynne M. Parker, Esquire, hereby certify that I caused to be served two copies of the foregoing MOTION TO COMPEL DISCOVERY this 6th day of February, 2008 upon the following counsel of record via Electronic Case Filing System and First Class U.S. Mail: Gary F. Seitz, Esquire Rawle & Henderson LLP 300 Delaware Avenue, Suite 1015 Wilmington, DE 19801 Sharon Oras Morgan, Esquire Fox Rothschild LLP 919 North Market Street Suite 1300 Wilmington, DE 19801

HOLLSTEIN KEATING CATTELL JOHNSON & GOLDSTEIN P.C. By: /s/ Lynne M. Parker Lynne M. Parker, Bar No. 2811 1201 N. Orange Street, Suite 730 Wilmington, Delaware 19801 (302) 884-6700 Attorneys for Plaintiff

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MACSTEEL INTERNATIONAL USA CORP., Plaintiff, v. M/V DOBRUSH in rem, her engines, boilers, etc., WESTERN BULK CARRIERS A.S., and COMMERCIAL FLEET OF DONBASS, Defendants. : : : : : : : : : : :

Civil Action No. 07-484-JJF-LPS

ORDER The plaintiff having moved pursuant to Rule 37 of the Federal Rules of Civil Procedure to compel defendant Commercial Fleet of Donbass to comply with outstanding discovery demands, it is hereby ORDERED: (1) That defendant Commercial Fleet of Donbass shall serve and file a written response to plaintiff's Request for Production of Documents on or before___________________________________; and (2) That defendant Commercial Fleet of Donbass shall produce the Master and Chief Mate of the M.V. DOBRUSH on the subject voyage for deposition on ________________________________ at plaintiff's counsel's offices in Wilmington, Delaware; and (3) That defendant Commercial Fleet of Donbass shall pay to plaintiff the sum of _____________ as sanctions pursuant to Fed.R.Civ.P 37 (a)(4)(A).

___________________________ J.

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