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DiLeo v. United Rentals (North America), Inc.

United States District Court, D. Massachusetts

July 9, 2018

VINCENT DiLEO and LISA DiLEO, Plaintiffs,
v.
UNITED RENTALS (NORTH AMERICA), INC., JLG INDUSTRIES, INC., ALBION INDUSTRIES, INC., CONVEYOR AND CASTER CORP., COLSON CASTER GUANGZHOU LTD., COLSON ASIA HONG KONG LTD., and COLSON GROUP HOLDINGS, LLC., Defendants. UNITED RENTALS NORTH AMERICA, INC., Third-Party Plaintiff,
v.
ELECTRICAL CONSTRUCTION AND CONTRACTING, INC., Third-Party Defendant.

          ORDER

          David H. Hennessy United States Magistrate Judge

         Before 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.

         The 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.

         For the 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.

         I. BACKGROUND

         This 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 Amended Complaint).

         A chronology is helpful to understanding the instant motion.

         On 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.

         On 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.

         Colson 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 ##158, 159.

         On 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.

         On 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.

         On 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.

         On 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 additional ...


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