Lori Golden v. American Pro Energy

Filing 41

MINUTES (IN CHAMBERS) by Magistrate Judge Kenly Kiya Kato: granting 36 Motion to Compel and vacating the hearing on Plaintiff's Motion to Compel set for June 29, 2017. (dts)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

EDCV 16-891-MWF (KKx)

Date: June 22, 2017

Title: Lori Golden v. American Pro Energy, et al.

Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
DEB TAYLOR

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Plaintiff(s):

Attorney(s) Present for Defendant(s):

None Present

None Present

Proceedings:

Order Granting Plaintiff’s Motion to Compel [Dkt. 36]

On June 1, 2017, Plaintiff Lori Golden (“Plaintiff”) filed a Motion to Compel seeking (a)
supplemental responses without objection to Interrogatories, Set One, Nos. 1 through 13; (b)
responses without objection to Interrogatories, Set Two, Requests for Production, Sets One and
Two; and (c) an order that Requests for Admission, Set One be deemed admitted (“Motion to
Compel”). ECF Docket No. (“dkt.”) 36. Plaintiff also seeks an award of expenses incurred in
connection with her efforts to obtain discovery in the sum of $11,839.00. For the reasons set
forth below, the Court GRANTS Plaintiff’s Motion to Compel. In addition, the Court finds an
award of expenses to Plaintiff is warranted, but additional briefing is required to determine the
appropriate amount of such an award. The hearing set for June 29, 2017 is hereby VACATED.
I.
BACKGROUND
On May 3, 2016, Plaintiff filed a Class Action Complaint alleging Defendant American
Pro Energy (“Defendant”) “negligently, and/or willfully contact[ed] Plaintiff through telephone
calls on Plaintiff’s cellular telephone, in violation of the Telephone Consumer Protection Act, 47
U.S.C. §§ 227 et seq., (“TCPA”), thereby invading Plaintiff’s privacy.” Dkt. 1, Compl. at ¶ 1.
Plaintiff brings this action on behalf of herself and all persons within the United States who
received a telephone call from Defendant on his or her cellular telephone number through the use
of any automatic telephone dialing systems or artificial or pre-recorded voice system, and where
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Defendant has no record of prior express consent for such individual to make such call, within
four years prior to the filing of the Complaint. Id. at ¶ 32.
On October 4, 2016, Plaintiff served Interrogatories, Set One, and Requests for
Production of Documents, Set One, on Defendant. Dkt. 36-1, Declaration of Kas Gallucci
(“Gallucci Decl.,”), ¶ 1, Exs. 1, 2. Plaintiff’s counsel granted Defendant an extension until
December 5, 2016 to respond without objections to Interrogatories, Set One, and Requests for
Production of Documents, Set One. Id. ¶ 2. On December 7, 2016, Plaintiff’s counsel granted
Defendant an additional extension until December 16, 2016 to respond without objections. Id. ¶
3. On December 22, 2016, Defendant’s counsel sent Plaintiff’s counsel an email stating he would
provide “a date certain to provide Defendant’s discovery responses by December 23rd.” Id. ¶ 5.
Plaintiff’s counsel did not receive any further communication from Defendant’s counsel. Hence,
on January 10, 2017, Plaintiff’s counsel sent Defendant’s counsel an email stating she would be
filing a motion to compel and seeking sanctions. Id. ¶ 7. On January 11, 2017, Defendant’s
counsel responded stating he would provide discovery responses by the end of that day. Id. On
January 20, 2017, Plaintiff’s counsel sent Defendant’s counsel a letter requesting to meet and
confer. Id. ¶ 9.
On March 1, 2017, Defendant served unverified responses to Interrogatories, Set One.
Id. ¶¶ 1, 10, Ex. 3.
On March 7, 2017, Plaintiff served on Defendant (a) Interrogatories, Set Two; (b)
Requests for Production of Documents, Set Two; and (c) Requests for Admission, Set One. Id. ¶
1, 11, Exs. 4, 5.
On May 1, 2017, Plaintiff’s counsel sent Defendant’s counsel a letter requesting to meet
and confer regarding Defendant’s failure to respond to Plaintiff’s discovery requests and setting
forth deficiencies in Defendant’s responses to Interrogatories, Set One. Dkt. 36-2, Declaration of
Andrew C. Hamilton (“Hamilton Decl.”) ¶ 2, Ex. A.
On May 4, 2017, Defendant’s counsel called Plaintiff’s counsel, but refused to meet and
confer regarding discovery. Id. ¶ 3.
On May 11, 2017, the Court granted Plaintiff’s unopposed Motion for Class Certification.
Dkt. 35.
On May 12, 2017, Plaintiff’s counsel sent Defendant’s counsel Plaintiff’s portion of a
joint stipulation regarding the discovery dispute. Hamilton Decl., ¶ 4, Ex. B. On that same day,
Defendant’s counsel informed Plaintiff’s counsel Defendant would not cooperate in preparing
the joint stipulation. Id. ¶ 5, Ex. C.
On June 1, 2017, Plaintiff filed the instant Motion to Compel. Dkt. 36. On June 12, 2017,
the previously assigned United States Magistrate Judge held a telephonic conference regarding
Plaintiff’s Motion to Compel. Dkt. 39. Defendant’s counsel informed the Court “defendant did
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not oppose the Motion and that it intended to file for bankruptcy protection.” Id. The Court
ordered counsel for Defendant to file a notice of non-opposition no later than June 16, 2017. As
of the date of this Order, Defendant has filed neither an opposition nor a notice of nonopposition. The matter thus stands submitted.
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 26(b) provides that parties may obtain discovery
regarding
any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1). Relevant information “need not be admissible in evidence to be
discoverable.” Id. A court “must limit the frequency or extent of discovery otherwise allowed”
if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from
some other source that is more convenient, less burdensome, or less expensive; (ii) the party
seeking discovery has had ample opportunity to obtain the information by discovery in the action;
or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P.
26(b)(2)(C).
“A party seeking discovery may move for an order compelling an answer, . . . production,
or inspection.” Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv). “[A]n evasive or incomplete disclosure,
answer, or response must be treated as a failure to disclose, answer or respond.” Fed. R. Civ. P.
37(a)(4).
Lastly, pursuant to Local Rule 7-12, a party’s failure to oppose a motion may be deemed
consent to the granting of the motion. L.R. 7-12.
III.
DISCUSSION
A.

REQUESTS FOR ADMISSION, SET ONE

Pursuant to Federal Rule of Civil Procedure 36(a)(3), “A matter is admitted unless,
within 30 days after being served [with a Request for Admission], the party to whom the request
is directed serves on the requesting party a written answer or objection addressed to the matter
and signed by the party or its attorney.” Fed. R. Civ. P. 36(a)(3).

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Here, Defendant was served with the Requests for Admission, Set One, on March 7,
2017. Gallucci Decl., ¶ 11. Over three months have passed since Defendant was served with the
Requests for Admission and Defendant has not served a written answer or objection. Id. In
addition, the Court deems Defendant’s failure to oppose the Motion consent to granting the
Motion that the Requests for Admission be deemed admitted. See L.R. 7-12. Hence, the Court
grants Plaintiff’s Motion and the Requests for Admission, Set One, shall be deemed admitted.
B.

REQUESTS FOR PRODUCTION, SETS ONE AND TWO

“The party to whom the [Request for Production] is directed must respond in writing
within 30 days after being served.” Fed. R. Civ. P. 34(b)(2)(A). The requesting party “is
entitled to individualized, complete responses to each of the [Requests for Production] . . .,
accompanied by production of each of the documents responsive to the request, regardless of
whether the documents have already been produced.” Louen v. Twedt, 236 F.R.D. 502, 505
(E.D. Cal. 2006). Failure to object to requests for production of documents within the time
required constitutes a waiver of any objection. See Richmark Corp. v. Timber Falling
Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992); Bryant v. Armstrong, 285 F.R.D. 596, 602
(S.D. Cal. 2012) (holding objections served one and one-half months late were waived).
Here, Defendant was served with Requests for Production, Set One, on October 4, 2016
and Requests for Production, Set Two, on March 7, 2017. Gallucci Decl., ¶¶ 1, 11, Ex. 2, 5. As of
June 1, 2017, Defendant had not served any written responses to either set of Requests for
Production. Id. ¶ 11. In addition, the Court deems Defendant’s failure to oppose the Motion
consent to granting the Motion to Compel responses to Requests for Production. See L.R. 7-12.
Accordingly, Defendant has waived any objections to Requests for Production, Sets One and
Two. Hence, the Court grants Plaintiff’s Motion and Defendant shall serve written responses to
Requests for Production, Sets One and Two, and produce all responsive documents without
objections within ten (10) days of the date of this order.
C.

INTERROGATORIES, SETS ONE AND TWO

“The responding party must serve its answers and any objections within 30 days after
being served with the interrogatories.” Fed. R. Civ. P. 33(b)(2). “Each interrogatory must, to
the extent it is not objected to, be answered separately and fully in writing under oath.” Fed. R.
Civ. P. 33(b)(3). “The grounds for objecting to an interrogatory must be stated with specificity.
Any ground not stated in a timely objection is waived unless the court, for good cause, excuses
the failure.” Fed. R. Civ. P. 33(b)(4). Finally, responses to interrogatories must be verified.
Fed. R. Civ. P. 33(b)(5) (“The person who makes the answers must sign them, and the attorney
who objects must sign any objections.”).
Here, Defendant was served with Interrogatories, Set One, on October 4, 2016 and
Interrogatories, Set Two, on March 7, 2017. Gallucci Decl., ¶¶ 1, 11, Exs. 1, 4. On March 1,

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2017, Defendant served unverified responses to Interrogatories, Set One.1 Id. ¶ 1, Ex. 3.
Defendant has not served responses to Interrogatories, Set Two. Therefore, as of June 1, 2017,
Defendant has not served any answers or objections to either set of Interrogatories. Id. ¶ 11; Fed.
R. Civ. P. 33(b)(5). In addition, the Court deems Defendant’s failure to oppose the Motion
consent to granting the Motion to Compel responses to Interrogatories, Sets One and Two. See
L.R. 7-12. Accordingly, Defendant has waived any objections to Interrogatories, Sets One and
Two. Hence, the Court grants Plaintiff’s Motion and Defendant shall serve verified, written
responses to Interrogatories, Sets One and Two without objections within ten (10) days of the
date of this order.
D.

PLAINTIFF’S REQUEST FOR EXPENSES IS GRANTED
1.

Applicable Law

Pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), if a discovery motion is granted,
“the court must, after giving an opportunity to be heard, require the party . . . whose conduct
necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s
reasonable expenses incurred in making the motion, including attorney’s fees,” unless “(i) the
movant filed the motion before attempting in good faith to obtain the disclosure or discovery
without court action; (ii) the opposing party’s nondisclosure, response, or objection was
substantially justified; or (iii) other circumstances make an award of expenses unjust.” Fed. R.
Civ. P. 37(a)(5)(A).
In addition, the Local Rules provide strict procedures with which counsel must comply in
bringing or opposing a discovery motion, including requiring a pre-filing conference of counsel
and joint stipulation, and specifically provide that “[t]he failure of any counsel to comply with or
cooperate in the foregoing procedures may result in the imposition of sanctions.” L.R. 37-4.
2.

Application

Here, Defendant failed to meet and confer, participate in the preparation of a joint
stipulation, or timely oppose the Motion to Compel. Further, Defendant’s failure to respond to
discovery is not substantially justified. Thus, pursuant to Federal Rule of Civil Procedure
37(a)(5)(A) and Local Rule 37-4, Plaintiff’s request for an award of reasonable expenses incurred
in connection with compelling Defendant to comply with its discovery obligations is GRANTED
in an amount to be determined after further briefing.

1

In addition, having reviewed Defendant’s counsel’s proposed responses to
Interrogatories, Set One, Nos. 1 through 12, the Court agrees with Plaintiff that the responses
appear to generally ignore the fact that this is a class action. Hence, Defendant’s refusal to
respond to interrogatories regarding other class members is unjustified, and the proposed
responses are incomplete.
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Plaintiff requests the amount of $11,839. However, Plaintiff has not provided evidentiary
support for the amount requested. The Court will determine the appropriate amount of
monetary sanctions after reviewing further evidentiary support. Plaintiff may file a declaration
regarding the amount reasonably incurred as a result of Defendant’s failure to timely respond to
discovery no later than June 29, 2017. Defendant may file objections to Plaintiff’s declaration
no later than three (3) court days after the declaration is filed and served.
IV.
CONCLUSION
Based upon the foregoing reasons and Defendant’s failure to file a timely opposition, IT
IS THEREFORE ORDERED that:
(1)
(2)
Defendant;

Plaintiff’s Motion to Compel is GRANTED;
Plaintiff’s Requests for Admission, Set One, are deemed to be admitted by

(3)
Within ten (10) days of the date of this Order, Defendant shall provide the
following to Plaintiff:
(a) Verified supplemental responses without objections to Interrogatories, Set
One;
(b) Verified responses without objections to Interrogatories, Set Two; and
(c) Responses without objections to Requests for Production, Sets One and Two.
(4)
Plaintiff may file a declaration regarding the amount reasonably incurred as a
result of Defendant’s failure to timely respond to discovery no later than June 29, 2017.
Defendant may file objections to Plaintiff’s declaration no later than three (3) court days after
the declaration is filed and served; and
(5)

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The hearing on Plaintiff’s Motion to Compel set for June 29, 2017 is VACATED.

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