Coleman v. National Community Reinvestment Coalition

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
ELLIOTTE PATRICK COLEMAN,
Debtor.
____________________________
ELLIOTTE PATRICK COLEMAN,
Plaintiff,
v.
NATIONAL COMMUNITY
REINVESTMENT COALITION,
Defendant.
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Case No. 06-00254
(Chapter 13)
Adversary Proceeding No.
07-10023
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER RE “REQUEST FOR RECONSIDERATION OF
ORDER’S IMPOSING SANCTIONS, GRANTING DEFENDANT’S MOTIONS TO
COMPEL DISCOVERY, DENYING PLAINTIFF’S MOTION TO COMPEL DISCOVERY
AND FOR HEARING”
The plaintiff Coleman has filed a motion against the
defendant (“NCRC”) entitled “Request for Reconsideration of
Order’s Imposing Sanctions, Granting Defendant’s Motions to
Compel Discovery, Denying Plaintiff’s Motion to Compel Discovery
and for Hearing.” (Docket Entry (“DE”) No. 98.) The motion will
be denied.
The document below is hereby signed.
Signed: July 27, 2009.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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I
Coleman seeks reconsideration of the Memorandum Decision and
Order granting NCRC’s motions to compel. The grounds he raises
are insufficient to warrant granting his request.
A.
Coleman’s principal contention is that an oral hearing was
required before the court could grant the motions to compel and
direct an award of expenses for the pursuit of the motions.
However, the rules do not require an oral hearing, but rather
permit an award of expenses only “after affording an opportunity
to be heard.” As expressly set forth under the rules, this
phrase was used “to make clear that the court can consider [the
granting of reasonable expenses] on written submissions as well
as on oral hearings.” Fed. R. Civ. P. 37(a) advisory committee’s
note (1993); accord, Rose v. First Colony Community Services
Ass'n, Inc., 1999 WL 1068252, *1 (5th Cir. Oct. 22, 1999) (“An
oral hearing is not required. The Advisory Committee Notes state
that the court may consider awards of expenses either on written
submissions or in an oral hearing.”) Coleman had the opportunity
and failed to file oppositions to the motions, and the court was
well justified in granting the motions as they set forth adequate
grounds for granting the relief sought.
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B.
Coleman also contends that his responses were timely because
(1) he was not served the discovery on December 11, 2007, but
instead on February 25, 2008, and (2) that he timely faxed
responses to the discovery on April 2, 2008, when February 25,
2008, is used as the service date. First, Coleman did not file
an opposition to the initial motion to compel of March 20, 2008
(see DE No. 56), which was the appropriate time for him to take
issue with whether he was served on December 11, 2007. Because
he failed to do so, this court was entitled to treat December 11,
2007 as the date of service of discovery, and therefore to treat
the motion to compel of March 20, 2008 as not premature.
Regardless, Coleman is incorrect in arguing that his April
2, 2008 responses were timely even with a February 25, 2008 date
of service. Pursuant to Fed. R. Bankr. P. 7036(a)(3), which
adopts Fed. R. Civ. P. 36(a)(3), “[a] matter is admitted unless,
within 30 days after being served, the party to whom the request
is directed serves on the requesting party a written answer or
objection addressed to the matter and signed by the party or its
attorney.” Calculating the 30-day time period, as set forth in
Fed. R. Bankr. P. 9006, and taking into account that February
2008 was a leap year, Coleman had until March 31, 2008 to respond
(30 days from February 25, 2008 was March 26, 2008; the three
additional days, as added by Fed. R. Bankr. P. 9006(f), moved the
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deadline to March 29, 2008 - a Saturday; which, by operation of
Fed. R. Bankr. P. 9006(a), moved the deadline to the next non-
holiday, weekday - i.e. March 31, 2008). Coleman’s April 2, 2008
responses were therefore untimely, and the requested admissions
were deemed admitted.
C.
Finally, Coleman contends that the discovery was
inappropriate. But Coleman failed to raise that in a response to
the motion, and the court’s review of the discovery did not
suggest that it was plainly not reasonably calculated to lead to
the discovery of admissible evidence.
D.
In any event, NCRC timely filed its statement of attorney’s
fees incurred in pursuing the motions to compel (DE No. 95), and
Coleman neglected to file a timely opposition to the statement.
He has not shown excusable neglect warranting his being allowed,
out of time, to contest the award of fees sought.
II
Coleman also seeks reconsideration of the Memorandum
Decision and Order ruling on his own motion to compel discovery,
but the court ruled that the objections to the part of the
discovery not provided were proper, and as to the discovery
belatedly provided, directed that Coleman recover his reasonable
expenses (which he elected not to pursue). There is no good
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reason to vacate the order ruling on Coleman’s motion to compel.
III
In accordance with the foregoing, it is
ORDERED debtor’s “Request for Reconsideration of Order’s
Imposing Sanctions, Granting Defendant’s Motions to Compel
Discovery, Denying Plaintiff’s Motion to Compel Discovery and for
Hearing” is DENIED.
[Signed and dated above.]
Copies to: All counsel of record; Cynthia A. Niklas, Chapter 13
Trustee; Office of U.S. Trustee.
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