Baker v. Bell et al

Filing 50

ORDER that Plaintiff's Motion to Compel Discovery, doc. 41 , is DENIED without prejudice. Signed by Magistrate Judge Lawrence O Anderson on 3/18/2014.(KMG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 John P. Baker, Plaintiff, 10 11 vs. 12 Dr. Thomas Bell, Defendant. 13 ) ) ) ) ) ) ) ) ) ) No. CV-12-1162-PHX-PGR (LOA) ORDER 14 This matter is before the Court on Plaintiff’s Motion to Compel Discovery in which 15 Plaintiff requests that the Court compel Defendant Bell to properly respond to his discovery 16 requests. (Doc.41) Defendant Bell has filed a Response and Plaintiff has filed a Reply. (Docs. 17 44, 48) 18 In the motion, Plaintiff contends he sent a letter to Defendant’s counsel on November 19 19, 2013, stating the discovery responses were late, incomplete and evasive. Plaintiff contends 20 that despite the letter to counsel, no attempt to correct the responses has been made. Plaintiff, 21 however, fails to identify in the motion which discovery responses were deficient and how they 22 were deficient. 23 Defendant asserts in the response that his counsel responded to Plaintiff’s letter with 24 a letter dated November 26, 2013. (Doc. 44, Exh. 7) Counsel wrote to Plaintiff that “[i]f there 25 are particular responses to which you take issue, please do not hesitate to contact me. I will 26 certainly work with you to resolve any dispute, in good faith.” (Id.) Plaintiff claims in his reply 27 he did not receive counsel’s letter. (Doc. 48 at 3) 28 1 Defendant contends, inter alia, the motion to compel should be denied because 2 Plaintiff failed to comply with Rule 37(a)(1) of the Federal Rules of Civil Procedure 3 (“Fed.R.Civ.P.”) and Rule 7.2(j) of the Local Rules of Civil Procedure (“LRCiv”). Rule 4 37(a)(1), Fed.R.Civ.P., provides that a motion to compel “must include a certification that the 5 movant has in good faith conferred or attempted to confer with the person or party failing to 6 make disclosure or discovery in an effort to obtain it without court action.” The Local Rules 7 reiterate this certification requirement and further provide that “[a]ny discovery motion brought 8 before the Court without prior personal consultation with the other party and a sincere effort to 9 resolve the matter, may result in sanctions.” LRCiv 7.2(j). 10 Defendant also argues Plaintiff’s motion fails to comply with LRCiv 37.1. That rule 11 provides that a motion to compel discovery shall “set forth, separately from a memorandum of 12 law, the following in separate, distinct, numbered paragraphs: 13 (1) the question propounded, the interrogatory submitted, the designation requested or the inspection requested; 14 (2) the answer, designation or response received; and 15 (3) the reason(s) why said answer, designation, or response is deficient.” 16 LRCiv 37.1(a). Civil Local Rule 37.1(a) applies to all pro se litigants, including prisoners. See 17 Aros v. Robinson, 2011 WL 643386, at *2 (D. Ariz. Feb. 11, 2011) (“Plaintiff’s failure to 18 comply with [LRCiv 37.1(a)] provides an independent sufficient basis to deny his Motion to 19 Compel. ”). The requirements of this Local Rule do not apply “where there has been a complete 20 and total failure to respond to a discovery request.” LRCiv 37.1(b). 21 A district court’s local rules are not petty requirements, but have “the force of law.” 22 Hollingsworth v. Perry, 558 U.S. 183, 191 (2010) (citation omitted). They “are binding upon 23 the parties and upon the court, and a departure from local rules that affects substantial rights 24 requires reversal.” Professional Programs Group v. Department of Commerce, 29 F.3d 1349, 25 1353 (9th Cir. 1994) (internal quotation marks omitted). “A departure is justified only if the 26 effect is so slight and unimportant that the sensible treatment is to overlook it.” Id. (citations and 27 internal quotation marks omitted). “Anyone appearing before the court is bound by these Local 28 -2- 1 Rules[,] including “[p]arties not represented by an attorney unless the context requires 2 otherwise.” LRCiv 83.3(c)(1). 3 Regarding his obligation to confer in good faith, Plaintiff fails to attach to his motion 4 a copy of the November 19, 2013 letter to Defendant Bell’s counsel. Based on counsel’s 5 November 26, 2013 letter in response, however, it appears Plaintiff failed to identify particular 6 responses to his discovery requests that he was disputing. Additionally, it appears that Plaintiff, 7 who claims he never received the November 26, 2013 letter, made no further attempts to resolve 8 the discovery issues before filing the motion to compel. For these reasons, the Court finds 9 Plaintiff has failed to comply with Fed.R.Civ.P. 37(a)(1) and LRCiv 7.2(j). 10 In addition, Plaintiff’s motion to compel fails to comply with LRCiv 37.1(a). 11 Plaintiff’s motion does not set forth, separately from a memorandum of law, in separate, 12 distinct, numbered paragraphs, the documents requested, the response received and the reasons 13 why the response is deficient. Although Plaintiff attached to his reply a copy of Defendant 14 Bell’s discovery responses, which included the original requests, Plaintiff did not do what the 15 rule requires by explaining, with respect to each response, why it is deficient. This requirement 16 enables the Court to address the merits of each request and response individually. For these 17 reasons, the Court finds Plaintiff’s motion to compel fails to comply with LRCiv 37.1(a). 18 Finally, Defendant asks the Court to award Defendant the reasonable costs and fees 19 associated with responding to the motion to compel. The Court, however, finds an award of 20 expenses and fees “unjust” at this time. See Fed.R.Civ.P. 37(a)(5)(B). Because Plaintiff failed 21 to comply with the requirements in the Local Rules for bringing a motion to compel, the Court 22 did not reach the merits of his discovery disputes and no finding is made as to whether the 23 motion was “substantially justified.” See Fed.R.Civ.P. 37(a)(5)(B). 24 Accordingly, 25 IT IS ORDERED that Plaintiff’s Motion to Compel Discovery, doc. 41, is DENIED 26 27 without prejudice. DATED this 18th day of March, 2014. 28 -3-

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