United States District Court, D. Massachusetts
H. Hennessy United States Magistrate Judge
me by way of referral, see docket #176, is the
motion of Defendant JLG Industries, Inc. (“JLG”)
to compel and sanction Defendants Colson Group Holdings, LLC
(“Colson Group”), Colson Caster Guangzhou Ltd.
(“Colson Caster”), and Colson Asia (Hong Kong)
Ltd. (“Colson Asia”) (collectively, the
“Colson entities”). Docket #172; see
docket #173 (supporting memorandum of law). JLG's motion
argues that the Colson entities failed to timely respond to
JLG's request for production of documents, requiring JLG
to file the instant motion to compel. The motion seeks an
order compelling the Colson entities to respond, and
sanctions, including costs and attorney's fees, against
the Colson entities. The Colson entities oppose the motion.
See docket #181.
parties argued the motion at a hearing on July 5, 2018. At
that hearing, I issued an order from the bench compelling the
Colson entities to supplement their responses to JLG's
request for production no later than July 26, 2018. I took
under advisement JLG's motion for sanctions.
reasons that follow, JLG's motion for sanctions is
GRANTED IN PART AND DENIED IN PART. I find that sanctions are
appropriate as to Colson Group, but not as to Colson Caster
or Colson Asia. I therefore will award sanctions in the
amount of one-third of JLG's costs and attorney's
fees. I direct JLG to file under seal a schedule of its costs
and attorney's fees associated with the instant motion.
product liability case arises from an accident at a
construction site on December 18, 2012. Plaintiff Vincent
DiLeo, through his company Third-Party Defendant Electrical
Construction and Contracting, Inc. (“ECC”),
rented a vertical platform lift from Defendant United Rentals
(North America) Inc. (“United Rentals”) for use
at a job site in Methuen, Massachusetts. The lift was
transported by trailer from a United Rentals location in
Shrewsbury, Massachusetts to the job site. While DiLeo and
others were attempting to transfer the lift from the trailer
onto the ground, one of the lift's wheels snapped,
causing the lift to fall onto DiLeo. DiLeo sustained serious
physical injuries, causing him to miss work and lose wages.
DiLeo and his wife, Plaintiff Lisa DiLeo, allege that a
manufacturing defect caused the wheel to snap. They have sued
Defendants on various theories of liability including breach
of the implied warranty of merchantability, negligence, and
loss of consortium. See generally docket #127 (Third
chronology is helpful to understanding the instant motion.
March 31, 2016, Judge Hillman held the first scheduling
conference in this case and issued the Court's first
scheduling order. See docket ##28, 29. Pursuant to
Federal Rule of Civil Procedure 26(f)(1), the parties were
required to have held a Rule 26(f) conference at least
twenty-one days before the scheduling conference took place
or the scheduling order was issued. See Fed.R.Civ.P.
26(f)(1); see also Fed.R.Civ.P. 26(f)(2) (listing
topics to be discussed at the Rule 26(f) conference). The
Colson entities did not participate in the Rule 26(f)
conference because they were not yet parties to this case.
September 5, 2017, JLG served on counsel to the Colson
entities the request for production that is the subject of
the instant motion. See docket #172-1. The Colson
entities still had not joined this lawsuit at that time.
Group joined the case when it waived service of
Plaintiffs' Third Amended Complaint on November 20, 2017.
See docket #137. And Colson Caster and Colson Asia
joined the case when substitute service of the Third Amended
Complaint was effected on March 23, 2018. See docket
November 13, 2017, JLG emailed the Colson entities'
counsel asking for a response to the request for production.
The Colson entities did not respond to that email. JLG sent
another email on November 27, 2017, to which the Colson
entities again did not respond.
December 4, 2017, JLG's counsel and the Colson
entities' counsel spoke by phone. According to JLG, the
Colson entities took the position that they were not
obligated to respond to JLG's discovery request because
they had not yet answered Plaintiffs' complaint.
JLG's counsel explained that the Colson entities'
position was incorrect as a matter of law.
December 7, 2017, JLG's counsel emailed the Colson
entities' counsel to follow up the December 4 phone call.
In response, the Colson entities wrote that they would
“make every effort” to serve responsive documents
by January 8, 2018. Docket #172-3 at 2. The Colson entities
failed to meet that January 8 deadline.
April 23, 2018, JLG again emailed the Colson entities'
counsel asking about the status of JLG's document
request. The Colson entities did not respond. JLG sent two