United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER 
L. HORAN UNITED STATES MAGISTRATE JUDGE.
CGC Royalty Investments I, LLC (“Plaintiff” or
“Cypress”) has filed a Motion to Compel Discovery
from Defendants, see Dkt. No. 29 (the
“MTC”), seeking an order compelling discovery and
for imposition of sanctions and request for attorneys'
fees on Defendants Order Management Systems, LLC (“OMS,
LLC”), Innovate 360 Dallas Acquisition, LLC
(“Innovate 360 Dallas”), The Innovation Factory,
Inc. (“The Innovation Factory”), and Timothy J.
Sommers (“Sommers”) (collectively,
“Defendants”) for Defendants' willful,
intentional violations of the discovery rules and abuse of
the discovery process.
States District Judge Sidney A. Fitzwater has referred the
motion to the undersigned United States magistrate judge for
a hearing, if necessary, and determination pursuant to 28
U.S.C. § 636(b)(1)(A). See Dkt. No. 31. The
Court determines that a hearing is not necessary.
have not responded to the motion, and their time to do so has
passed. See N.D. Tex. L. Civ. R. 7.1(e) (“A
response and brief to an opposed motion must be filed within
21 days from the date the motion is filed.”).
reasons explained below, the Court GRANTS in part and DENIES
in part on Cypress's Motion to Compel Discovery from
Defendants [Dkt. No. 29].
MTC, Cypress explains that it “filed a lawsuit against
Defendants bringing claims for breach of contract, fraud, and
violation of the Uniform Fraudulent Transfer Act.” Dkt.
No. 29 at 2. On September 6, 2016, Cypress served
Plaintiff's First Set of Interrogatories (the
“Interrogatories”), Plaintiff's First
Requests for Production (the “Requests for
Production”), and Plaintiff's First Request for
Admissions (“Requests for Admissions”) on
Defendants (collectively, the “Discovery
Requests”). According to Cypress, Defendants'
responses and objections to the Discovery Requests were due
October 6, 2016.
then explains the course of the parties' communications
regarding the Discovery Requests:
3. On October 5, 2016, Defendants requested “an
extension of time until Thursday, October 20, 2016 to provide
responses to Plaintiff's outstanding Requests for
Production, Requests for Admission and Interrogatories to
Defendants.” (Appx. 024, Correspondence from
Defendants' counsel, dated October 5, 2016). Plaintiff
granted the request.
4. On October 20, 2016, Plaintiff did not receive objections
or responses to the Discovery Requests from any of the
Defendants. Consequently, on October 25, 2016, counsel for
Plaintiff called and emailed Defendants' counsel
inquiring as to when Plaintiff could expect to receive
Defendants' objections and responses to Plaintiff's
Discovery Requests. (Appx. 025, Email from Plaintiff's
counsel to Defendants' counsel). Counsel for Plaintiff
did not receive a response to the inquiry made.
5. On October 31, 2016, counsel for Plaintiff, again called
Defendants' counsel. During the call, Defendants'
counsel represented that Plaintiff could expect to receive
objections and responses to Plaintiff's Discovery
Requests by November 4, 2016 if not before. That same day,
Defendants' counsel served Defendants' Responses to
Plaintiff's First Request for Admissions and confirmed
that “Defendants anticipate[d] serving their Answers to
Interrogatories and Requests for Production by November 4,
2016.” (Appx. 026, Correspondence from Defendants'
counsel to Plaintiff's counsel).
6. On November 4, 2016, Plaintiff did not receive
Defendants' objections and responses to the
Interrogatories or the Requests for Production.
7. On November 6, 2016, without explanation as to the delay,
Plaintiff received Defendants' objections and responses
to the Interrogatories. (Appx. 027-035, Defendant's
Responses to Plaintiff's First Set of Interrogatories).
Plaintiff did not, however, receive Defendants' objection
and responses to Plaintiff's First Requests for
Production or a single document.
8. On November 10, 2016, after reviewing Defendants'
Responses to the Interrogatories, counsel for Plaintiff
attempted to contact Defendants' counsel to discuss
deficiencies in Defendants' Interrogatory responses.
(Appx. 036, Emailed from Plaintiff's counsel to
9. On or about November 15, 2016, Plaintiffs' counsel had
still not received a response from Defendants' counsel
regarding Defendants' deficient Interrogatory responses,
and therefore counsel for Plaintiff again reached out to
Defendants' counsel, sua sponte. During a telephone call,
counsel for the parties discussed the Interrogatory responses
as well as Defendants' failure to provide Plaintiff with
responses and objections to its First Requests for
10. On November 18, 2016, Plaintiff's counsel followed up
with correspondence to Defendants' counsel summarizing
the issues that were previously discussed and requesting that
they be cured by November 30, 2016. (Appx. 037-038,
Correspondence from Plaintiff's counsel to
11. To date, Defendants have not made any attempt to respond
to the November 18, 2016 correspondence or to cure the
Id. at 2-4 (footnote omitted). Cypress also explains
that, “[o]n October 13, 2016, Defendant Bluewater filed
a Notice of Bankruptcy Filing and of Automatic Stay and on
October 17, 2016 this Court issued an Order administratively
closing the case as it relates to Defendant Bluewater
only” and that, “[t]herefore, Plaintiff does not
seek to compel objections and responses from Bluewater
Moorings, LLC.” Id. at 2 n.1
now “moves this Court to: Compel Defendants'
complete responses to Plaintiff's Interrogatories Nos. 3,
4, [10, ] 16, and 17; and Compel written responses and the
production of all documents that are responsive to
Plaintiff's First Request for Production to
Defendants.” Id. at 2. And, “pursuant to
Federal Rule of Civil Procedure 37(a)(5)(A), Plaintiff
respectfully requests the Court award Plaintiff its
reasonable expenses, including attorneys' fees, related
to the filing of this” MTC. Id. at 9.
Rule of Civil Procedure 37(a) governs motions to compel
discovery responses. Rule 37(a)(3)(B) provides that a party
seeking discovery may move for an order compelling production
or answers against another party when the latter has failed
to produce documents requested under Federal Rule of Civil
Procedure 34 or to answer interrogatories under Federal Rule
of Civil Procedure 33. See Fed. R. Civ. P.
37(a)(3)(B)(iii)-(iv). For purposes of Rule 37(a), “an
evasive or incomplete disclosure, answer, or response must be
treated as a failure to disclose, answer, or respond.”
party resisting discovery must show specifically how each
discovery request is not relevant or otherwise objectionable.
See McLeod, Alexander, Powel & Apffel, P.C. v.
Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990). A party
resisting discovery must show how the requested discovery was
overly broad, burdensome, or oppressive by submitting
affidavits or offering evidence revealing the nature of the
burden. See Merrill v. Waffle House, Inc., 227
F.R.D. 475, 477 (N.D. Tex. 2005); see also S.E.C. v.
Brady, 238 F.R.D. 429, 437 (N.D. Tex. 2006) (“A
party asserting undue burden typically must present an
affidavit or other evidentiary proof of the time or expense
involved in responding to the discovery request.”).
response to a Rule 34 request, “[f]or each item or
category, the response must either state that inspection and
related activities will be permitted as requested or state
with specificity the grounds for objecting to the request,
including the reasons.” Fed.R.Civ.P. 34(b)(2)(B).
“An objection must state whether any responsive
materials are being withheld on the basis of that objection.
An objection to part of a request must specify the part and
permit inspection of the rest.” Fed.R.Civ.P.
response to an interrogatory under Rule 33, “[e]ach
interrogatory must, to the extent it is not objected to, be
answered separately and fully in writing under oath”;
“[t]he grounds for objecting to an interrogatory must
be stated with specificity”; and “[a]ny ground
not stated in a timely objection is ...