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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John P. Baker,
Plaintiff,

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vs.

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Dr. Thomas Bell,
Defendant.

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No. CV-12-1162-PHX-PGR (LOA)
ORDER

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This matter is before the Court on Plaintiff’s Motion to Compel Discovery in which
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Plaintiff requests that the Court compel Defendant Bell to properly respond to his discovery
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requests. (Doc.41) Defendant Bell has filed a Response and Plaintiff has filed a Reply. (Docs.
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44, 48)
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In the motion, Plaintiff contends he sent a letter to Defendant’s counsel on November
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19, 2013, stating the discovery responses were late, incomplete and evasive. Plaintiff contends
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that despite the letter to counsel, no attempt to correct the responses has been made. Plaintiff,
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however, fails to identify in the motion which discovery responses were deficient and how they
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were deficient.
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Defendant asserts in the response that his counsel responded to Plaintiff’s letter with
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a letter dated November 26, 2013. (Doc. 44, Exh. 7) Counsel wrote to Plaintiff that “[i]f there
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are particular responses to which you take issue, please do not hesitate to contact me. I will
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certainly work with you to resolve any dispute, in good faith.” (Id.) Plaintiff claims in his reply
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he did not receive counsel’s letter. (Doc. 48 at 3)
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Defendant contends, inter alia, the motion to compel should be denied because

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Plaintiff failed to comply with Rule 37(a)(1) of the Federal Rules of Civil Procedure

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(“Fed.R.Civ.P.”) and Rule 7.2(j) of the Local Rules of Civil Procedure (“LRCiv”). Rule

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37(a)(1), Fed.R.Civ.P., provides that a motion to compel “must include a certification that the

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movant has in good faith conferred or attempted to confer with the person or party failing to

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make disclosure or discovery in an effort to obtain it without court action.” The Local Rules

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reiterate this certification requirement and further provide that “[a]ny discovery motion brought

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before the Court without prior personal consultation with the other party and a sincere effort to

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resolve the matter, may result in sanctions.” LRCiv 7.2(j).

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Defendant also argues Plaintiff’s motion fails to comply with LRCiv 37.1. That rule

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provides that a motion to compel discovery shall “set forth, separately from a memorandum of

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law, the following in separate, distinct, numbered paragraphs:

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(1) the question propounded, the interrogatory submitted, the designation
requested or the inspection requested;

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(2) the answer, designation or response received; and
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(3) the reason(s) why said answer, designation, or response is deficient.”
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LRCiv 37.1(a). Civil Local Rule 37.1(a) applies to all pro se litigants, including prisoners. See
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Aros v. Robinson, 2011 WL 643386, at *2 (D. Ariz. Feb. 11, 2011) (“Plaintiff’s failure to
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comply with [LRCiv 37.1(a)] provides an independent sufficient basis to deny his Motion to
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Compel. ”). The requirements of this Local Rule do not apply “where there has been a complete
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and total failure to respond to a discovery request.” LRCiv 37.1(b).
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A district court’s local rules are not petty requirements, but have “the force of law.”
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Hollingsworth v. Perry, 558 U.S. 183, 191 (2010) (citation omitted). They “are binding upon
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the parties and upon the court, and a departure from local rules that affects substantial rights
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requires reversal.” Professional Programs Group v. Department of Commerce, 29 F.3d 1349,
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1353 (9th Cir. 1994) (internal quotation marks omitted). “A departure is justified only if the
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effect is so slight and unimportant that the sensible treatment is to overlook it.” Id. (citations and
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internal quotation marks omitted). “Anyone appearing before the court is bound by these Local
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Rules[,] including “[p]arties not represented by an attorney unless the context requires

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otherwise.” LRCiv 83.3(c)(1).

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Regarding his obligation to confer in good faith, Plaintiff fails to attach to his motion

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a copy of the November 19, 2013 letter to Defendant Bell’s counsel. Based on counsel’s

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November 26, 2013 letter in response, however, it appears Plaintiff failed to identify particular

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responses to his discovery requests that he was disputing. Additionally, it appears that Plaintiff,

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who claims he never received the November 26, 2013 letter, made no further attempts to resolve

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the discovery issues before filing the motion to compel. For these reasons, the Court finds

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Plaintiff has failed to comply with Fed.R.Civ.P. 37(a)(1) and LRCiv 7.2(j).

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In addition, Plaintiff’s motion to compel fails to comply with LRCiv 37.1(a).

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Plaintiff’s motion does not set forth, separately from a memorandum of law, in separate,

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distinct, numbered paragraphs, the documents requested, the response received and the reasons

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why the response is deficient. Although Plaintiff attached to his reply a copy of Defendant

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Bell’s discovery responses, which included the original requests, Plaintiff did not do what the

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rule requires by explaining, with respect to each response, why it is deficient. This requirement

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enables the Court to address the merits of each request and response individually. For these

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reasons, the Court finds Plaintiff’s motion to compel fails to comply with LRCiv 37.1(a).

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Finally, Defendant asks the Court to award Defendant the reasonable costs and fees

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associated with responding to the motion to compel. The Court, however, finds an award of

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expenses and fees “unjust” at this time. See Fed.R.Civ.P. 37(a)(5)(B). Because Plaintiff failed

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to comply with the requirements in the Local Rules for bringing a motion to compel, the Court

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did not reach the merits of his discovery disputes and no finding is made as to whether the

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motion was “substantially justified.” See Fed.R.Civ.P. 37(a)(5)(B).

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Accordingly,

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IT IS ORDERED that Plaintiff’s Motion to Compel Discovery, doc. 41, is DENIED

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without prejudice.
DATED this 18th day of March, 2014.

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