United States District Court, D. Maryland
Style Pantry LLC, et al.
Hongkong Jigao Information & Technology Co., Ltd., et al.
matter has been referred to me to resolve the discovery
dispute arising from Plaintiffs Style Pantry LLC and Folake
Kuy-Huntoon's (“Style Pantry's”) Motion
to Compel Amazon.com Inc. (“Amazon”) to comply
with Style Pantry's July 5, 2018, subpoena. [ECF 43]. I
have considered Style Pantry's Motion, and Amazon's
Opposition. [ECF 20, 26]. No. hearing is necessary.
See Loc. R. 105.6 (D. Md. 2016). For the following
reasons, Style Pantry's Motion will be denied.
Pantry filed this suit on June 29, 2018, alleging copyright
infringement, misappropriation, unjust enrichment, and
invasion of privacy. [ECF 1]. On July 5, 2018, Style Pantry
sent a subpoena to Amazon's registered agent, demanding
information associated with particular IP addresses. [ECF 20
Ex. A]. On July 20, 2018, Amazon replied to Style
Pantry's subpoena, objecting on numerous grounds. [ECF 20
Ex. B]. On August 4, 2018, Style Pantry filed its Motion to
Compel. [ECF 20]. Amazon filed its Opposition to the Motion
to Compel on August 17, 2018. [ECF 26]. Since that date,
United States District Judge George L. Russell, III, denied
Style Pantry's intervening Motion for Default Judgment,
[ECF 32], Amazon filed an answer, [ECF 33], and Style Pantry
filed an amended complaint, [ECF 42]. To date, there have not
been any discovery scheduling conferences or scheduling
orders in this case.
MOTION TO COMPEL
the host of issues Amazon raises with Style Pantry's
Motion to Compel is an argument that the underlying subpoena
constituted an improper attempt to obtain early discovery
without leave of court. D. Opp. 3. Federal Rule of Civil
Procedure 26(d) forbids parties from “seek[ing]
discovery from any source before the parties have conferred
as required by Rule 26(f), except . . . when authorized by
these rules, by stipulation, or by court order.”
Fed.R.Civ.P. 26(d)(1). Under Local Rule 104.4, the Rule 26(f)
conference “need not take place and discovery shall not
commence . . . until a scheduling order is entered.”
Loc. R. 104.4 (D. Md. 2016).
there has been no scheduling order entered, and counsel have
not held a Rule 26(f) conference. Therefore, Style
Pantry's subpoena constituted a premature discovery
attempt. Its use of the subpoena to attempt to circumvent the
usual discovery schedule is “contrary to the
traditional interpretation of the Federal Rules of Civil
Procedure, which dictates that the rules must be construed in
a manner that is internally consistent.” Neel v.
Mid-Atlantic of Fairfield, LLC, Civil No. SAG-10-cv-405,
2012 WL 98558, at *1 (D. Md. Jan. 11, 2012) (citing
Mortgage Information Services, Inc. v. Kitchens, 210
F.R.D. 562, 566 (W.D. N.C. 2002)).
required component in a motion to compel is a
“certification that the movant has in good faith
conferred or attempted to confer with the person or party
failing to make disclosure or discovery in an effort to
obtain it without court action.” Fed.R.Civ.P. 37(a)(1).
Amazon's counsel alluded to this requirement in the first
paragraph of Amazon's objections to Style Pantry's
subpoena. [ECF 20 Ex. B] (“To the extent that a meet
and confer regarding any of these objections is necessary,
please contact undersigned counsel.”). Style
Pantry's Motion is deficient, because it does not include
the certification that Style Pantry conferred or attempted to
confer with Amazon before filing the Motion to Compel.
Accordingly, Style Pantry's Motion to Compel will be
Pantry's disregard for the scheduling of discovery
mandated by the rules and its failure to certify an attempt
to confer, are sufficient grounds for denying its Motion, and
I need not address the other deficiencies Amazon alleges.
AMAZON'S REQUEST FOR FEES AND EXPENSES
asks that this Court award it the reasonable expenses and
fees it incurred in defending against Style Pantry's
Motion. [ECF 26]. Federal Rule of Civil Procedure 37 provides
that, if a motion to compel is denied:
the court . . . must, after giving an opportunity to be
heard, require the movant, the attorney filing the motion, or
both to pay the party . . . who opposed the motion its
reasonable expenses incurred in opposing the motion,
including attorney's fees. But the court must not order
this payment if the motion was substantially justified or
other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 37(a)(5)(B). A motion is
“‘substantially justified' if there is a
‘genuine dispute' as to proper resolution or if
‘a reasonable person could think it correct, that is,
if it has a reasonable basis in law and fact.'”
Proa v. NRT Mid Atl., Inc., 633 F.Supp.2d 209, 213
(D. Md. 2009) (quoting Decision Insights, Inc. v. Sentia
Grp., Inc., 311 Fed. App'x 586, 599 (4th Cir.
2009)), aff'd sub nom. Proa v. NRT Mid-Atl.,
Inc., 398 Fed.Appx. 882 (4th Cir. 2010); see also
Lynn v. Monarch Recovery Mgmt., Inc., 285 F.R.D. 350,
365 (D. Md. 2012) (“Courts have concluded that
‘substantial justification' could include making
meritorious objections to requested discovery, or even
engaging in a legitimate dispute over the sequence of
discovery.”) (citation and internal quotations
because Style Pantry's Motion to Compel will be denied,
the Court must award reasonable expenses, including
attorney's fees, unless Style Pantry can show its Motion
was substantially justified. See Fed. R. Civ. P.
37(a)(5)(B). As discussed above, Style Pantry ignored the
requirements of the Federal Rules of Civil Procedure and the
Local Rules of this Court. Thus, I find that an award of