Perfect for a Friday, enjoy this nice rant on the topic:
Local Rule 7.1(a)(3), “Pre‐Filing Conferences Required of Counsel,” requires, except in a few enumerated circumstances, that, prior to filing any motion, movant’s counsel must “make reasonable effort to confer (orally or in writing), with all parties or non‐parties who may be affected by the relief sought in the motion in a good faith effort to resolve by agreement the issues raised in the motion.” The rule requires that each motion include a conferral statement showing what, if any, efforts were made to resolve the subject of the motion, and it provides that failure to comply with the rule may because to deny the motion.
Despite Government counsel’s argument to the contrary, the Motion at issue here is not one of those enumerated exceptions to the local conferral rule. Although a motion to dismiss is one of the exceptions to the mandatory pre‐filing conferral requirement, the Motion is, despite its title, actually a motion for sanctions brought pursuant to Rule 37. The specific sanction sought, and in fact the only sanction sought, is that the only claim challenging the requested forfeiture be dismissed. Be that as it may, and despite the styling of the Motion as a motion to dismiss, the Motion is, quite clearly, a motion for discovery sanctions under Rule 37 ‐‐ and is therefore subject to the Local Rule 7.1 conferral requirement.
The Motion itself expressly relies upon Rule 37, the rule outlining the sanctions available for failures to comply with discovery obligations. [ECF No. 87, p. 1]. Although dismissal is a remedy mentioned in the rule, it is only one of several types of relief listed as available sanctions. Government counsel acknowledged at the Hearing that the motion to “dismiss” is actually a discovery motion relying on Rule 37.
A movant cannot avoid the Local Rule 7.1 conferral requirement simply by styling its motion as if it were one of those specifically enumerated exceptions to the mandatory pre‐filing conferral rule. The mere fact that Government counsel decided to pursue only the most‐severe discovery sanctions remedy available, dismissal, does not transform the motion from a discovery motion (which requires a pre‐filing conferral) to a motion to dismiss (which does not). The Motion, which expressly mentions Rule 37 as the legal authority for the requested sanctions, failed to include a conferral statement, and this failure alone is adequate grounds to deny the Motion.4Wait -- there's more?
If Government counsel had contacted Claimant’s counsel before filing the Motion and clearly advised of the Government’s belief that Claimant’s stated reasons for canceling the depositions were part of a strategy to avoid giving deposition testimony in person in the United States and of the Government’s intent to seek an order dismissing or striking Claimant’s claim for failure to appear at noticed depositions, then Claimant’s counsel may have been able to persuade Claimant to set aside his stated concerns and appear for a deposition. But the consequences of such a hypothetical conferral are unknown because the mandatory pre‐filing conference never occurred. The Undersigned therefore denies the Motion on this ground alone.