United States of America v. $50,800.00 in US Currency

Filing 44

ORDER denying without prejudice 40 Plaintiff's Motion for Summary Judgment; granting in part and denying in part 42 Plaintiff's Motion to Compel Discovery (see attached pdf for complete information). ORDER that Plaintiff's request that Claimant's claim be stricken and a final order of forfeiture entered is DENIED without prejudice. ORDER that the parties' 10/21/11 stipulation 43 , is deemed a joint motion and is DENIED. Signed by Magistrate Judge Lawrence O Anderson on 10/21/11.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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$50,800.00 in United States Currency, )
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Defendant.
_________________________________ )
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Rodney Burnett-Johnson,
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Claimant.
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United States of America,

No. CV-10-2004-PHX-LOA
ORDER

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This case comes before the Court on Plaintiff’s Motion for Summary Judgment and
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Motion to Compel Discovery, filed on October 6th and 7th, 2011, respectively. (Docs. 40,
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42) Claimant has not responded to either motion. Claimant’s response to Plaintiff’s Motion
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for Summary Judgment, however, is not yet due. LRCiv 56.1(d) (“Notwithstanding the
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provisions of Rule 7.2 (c), (d), and (f), Local Rules of Civil Procedure, the opposing party
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may, unless otherwise ordered by the Court, have thirty (30) days after service within which
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to serve and file a responsive memorandum in opposition . . . .”).
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On October 21, 2011, the parties filed a belated stipulation, acknowledging that (1)
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“Claimant will not participate in discovery on the basis of the objections presented in the
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discovery previously provided[,]” (2) proposing “as a sanction for refusal to participate in
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discovery, Claimant will be prohibited from producing any evidence beyond that contained
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in the discovery submitted to date[,]” and (3) agreeing that “the Court may draw adverse

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inferences with respect to the information addressed in the Statement of Facts which supports

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Plaintiff’s motion for Summary Judgment.” (Doc. 43 at 2). The parties’ stipulation is

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deemed a joint motion which is denied.

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I. Motion for Summary Judgment

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Plaintiff’s Motion for Summary Judgment was timely filed before the November 10,

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2011 deadline established in the March 29, 2011 scheduling order. (Doc. 33 at 6) Never-

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theless, because the 22-page summary judgment motion, exclusive of its attachments,

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substantially exceeds the Local Rule’s 17-page limitation, it is summarily denied. LRCiv

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7.2(e)(1).

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II. Motion to Compel Discovery

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Plaintiff’s Motion to Compel Discovery was filed on the very last day for the

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completion of discovery, October 7, 2011, and failed to include the Rule 37(a)(1),

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Fed.R.Civ.P., and LRCiv 7.2(j) personal-consultation certifications.1 (Doc. 33 at 5)

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Plaintiff’s discovery motion consists of two components; it seeks: 1) an “order compelling

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Claimant to answer interrogatories, produce documents, and respond to requests for

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admission served upon Claimant on May 9, 2011[;]” or alternatively, 2) the imposition of

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sanctions on “Claimant by striking his Claim and Answer and entering a final order of

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forfeiture” because Claimant failed to respond to the discovery requested by Plaintiff. (Doc.

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42 at 1, 4)

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III. Discussion

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Plaintiff’s discovery motion was filed very late in the case’s management schedule

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LRCiv 7.2(j) provides:

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No discovery motion will be considered or decided unless a statement of moving
counsel is attached thereto certifying that after personal consultation and sincere
efforts to do so, counsel have been unable to satisfactorily resolve the matter. . . .
LRCiv 7.2(j).
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and is, arguably, untimely. Untimely-filed discovery motions are disfavored, especially when

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a plaintiff, as Plaintiff did here, waited to the very last day to file a discovery motion,

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knowing for several months that Claimant’s discovery responses would not be forthcoming.

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Ross v. Excel Group Flexible Ben. Plan, 2008 WL 4567229 (D.Ariz. Oct.14, 2008)

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(plaintiff’s motion to compel denied because his discovery requests were untimely filed less

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than 30 days before the Rule 16 completion of discovery deadline); Miller v. Rufion, 2010

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WL 4137278 (E.D.Cal. Oct.19, 2010); Thomas v. Pacificorp, 324 F.3d 1176, 1179 (10th Cir.

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2003) (discovery “requests must be served at least thirty days prior to a completion of

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discovery deadline”; otherwise, the requests are untimely). Granting the discovery

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component of Plaintiff’s Motion to Compel at the end of the scheduling order’s deadline for

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completing discovery risks disrupting the scheduling order’s orderly management of this

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forfeiture action. “The purpose of a discovery cutoff date is to protect the parties from a

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continuing burden of producing evidence and to assure them adequate time to prepare” for

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dispositive motions or trial. Whittaker Corp. v. Execuair Corp. 736 F.2d 1341, 1347 (9th Cir.

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1984). Granting the discovery motion would necessarily also extend the October 7, 2011

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discovery deadline, thereby modifying the Rule 16 scheduling order without the prerequisite

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showing of good cause and due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d

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604, 609-10 (9th Cir. 1992) (a pretrial scheduling order can only be modified “upon a

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showing of good cause.” If the party seeking the modification “was not diligent, the inquiry

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should end” and the motion to modify should not be granted).

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On the other hand, granting Plaintiff’s discovery motion, even without the

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certifications,2 may eliminate the need for a trial or a trial by ambush3 and would not reward

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Even though there is no attached certification, Plaintiff’s Motion to Compel
sufficiently describes counsel’s efforts to obtain the requested discovery from Claimant’s
counsel, including attaching the lawyers’ email exchanges on the issue. (Doc. 42-1,
Attachment A at 2-5)
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“Generally, the purpose of discovery is to remove surprise from trial preparation
so the parties can obtain evidence necessary to evaluate and resolve their dispute.” Moon v.
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the non-compliant Claimant for his failure to comply with the federal discovery rules. After

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consideration of the matter, because the trial court has wide latitude in controlling discovery,

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and Claimant did not promptly seek a protective order under Rule 26(c), Fed.R.Civ.P., that

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he not answer Plaintiff’s timely discovery, the Court will grant one aspect of Plaintiff’s

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discovery motion and will order Claimant to answer and respond to Plaintiff’s discovery.

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Cornwell v. Electra Central Credit Union, 439 F.3d 1018 (9th Cir. 2006) (“[d]istrict courts

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have wide latitude in controlling discovery, and [their] rulings will not be overturned in the

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absence of a clear abuse of discretion.”) (internal quotation marks and citation omitted);

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Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). By failing to seek a Rule 26(c)

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protective order or file a response to the motion, Claimant has failed to meet his burden of

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showing “that [Plaintiff’s]discovery should not be allowed, and [Claimant] has the burden

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of clarifying, explaining, and supporting [his] objections.” DIRECT TV, Inc. v. Trone, 209

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F.R.D. 455, 458 (C.D.Cal. 2002) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th

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Cir. 1975); Gerawan Farming, Inc. v. Prima Bella Produce, Inc., 2011 WL 2518948, 2

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(E.D.Cal. June 23, 2011) (“The party resisting discovery ultimately carries the burden of

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showing why discovery should not be allowed.”) (citation omitted).

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Plaintiff’s alternative request for sanctions is premature and is denied. United States

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v. One 1987 BMW 325, 985 F.2d 655 (1st Cir. 1993) (In a forfeiture action, the First Circuit

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held that a district court abused its discretion in striking a claim without first entering a

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discovery order and finding the order was breached.). Under Rule 37(b), Fed.R.Civ.P., a

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district court may impose sanctions, including default, for failing to comply with a court

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order but only after a court order was entered to do so. Rule 37(b) reads in relevant part as

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follows:

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If a party . . . fails to obey an order to provide or permit discovery, including an order
under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further
just orders. They may include [among others] . . . dismissing the action or proceeding

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SCP Pool Corp., 232 F.R.D. 633, 636 (C.D.Cal. 2005) (quoting Oakes v. Halvorson Marine
Ltd., 179 F.R.D. 281, 283 (C.D.Cal. 1998)).
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in whole or in part; [and] rendering a default judgment against the disobedient party.
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Rule 37(b)(2)(A)(i)–(vii), Fed.R.Civ.P.; Dreith v. Nu Image, Inc., 648 F.3d 779, 786 (9th Cir.

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2011). “The scope of sanctions for failure to comply with a discovery order is committed to

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the sound discretion of the district court.” Payne v. Exxon Corp., 121 F.3d 503, 510 (9th Cir.

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1997). “Belated compliance with discovery orders does not preclude the imposition of

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sanctions.” Wolstein v. Bernardin, 159 F.R.D. 546, 552 (W.D.Wash.1994) (quoting North

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American Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1451 (9th Cir. 1986)).

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Until today, no order has been entered compelling Claimant to answer Plaintiff’s

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discovery requests. Sanctions, however, may be entered in a forfeiture action if a claimant

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fails to comply with a court order. See, United States v. Approximately $256,533.57 in U.S.

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Currency, 2011 WL 87133, * 2 (E.D.Cal. January 10, 2011) (“Failure to follow a court order

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is sanctionable conduct.”); United States v. Approximately $141,932.00 in U.S. Currency,

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2008 WL 190878, * 4 (E.D.Cal. January 18, 2008) (“Federal Rule of Civil Procedure

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37(b)(2)(A) provides that sanctions may be imposed on a party that fails to obey a court order

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to provide or permit discovery, which sanctions may include, inter alia, ‘striking pleadings

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in whole or in part.’”).

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Accordingly,

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IT IS ORDERED that Plaintiff’s Motion for Summary Judgment, doc. 40, is

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DENIED without prejudice.

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IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel Discovery, doc. 42,

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is GRANTED in part and DENIED in part. On or before Wednesday, November 2, 2011,

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Claimant Rodney Burnett-Johnson, shall, to the extent he may not have already done so, fully

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and completely answer Plaintiff’s interrogatories, produce documents requested by Plaintiff,

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and respond to Plaintiff’s requests for admission served upon Claimant pursuant to the

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Federal Rules of Civil Procedure, or sanctions may be imposed, including, but not limited

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to, striking of Claimant’s claim and entering a final order of forfeiture in favor of Plaintiff.

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IT IS FURTHER ORDERED that Plaintiff’s request that Claimant’s claim be
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stricken and a final order of forfeiture entered is DENIED without prejudice.
IT IS FURTHER ORDERED that the parties’ October 21, 2011 stipulation, doc. 43,
is deemed a joint motion and is DENIED.
Dated this 21st day of October, 2011.

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