Ivin Mood v. City of Costa Mesa et al

Filing 113

MINUTES (IN CHAMBERS) by Magistrate Judge Kenly Kiya Kato: granting 90 MOTION for Reconsideration (dts)

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

SACV 15-1154-SVW (KK)

Date: June 22, 2017

Title: Ivin Mood v. City of Costa Mesa, 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 for Reconsideration [Dkt. 90]

On May 16, 2017, the Court issued an order granting in part and denying in part the
Motion to Compel filed by Defendant City of Newport Beach (“Defendant”) and granting
Defendant’s request for expenses incurred in bringing the Motion to Compel in the sum of
$1,320.00. ECF Docket No. (“Dkt.”) 85. On May 25, 2017, Plaintiff filed a Motion for
Reconsideration of the award of expenses. Dkt. 90. For the reasons set forth below, (a)
Plaintiff’s Motion is GRANTED, and (b) upon reconsideration, the Court reduces the award of
expenses to the sum of $100.00 to be paid to Defendant City of Newport Beach no later than
sixty (60) days from the date of this Order.
I.
PROCEDURAL HISTORY
On December 20, 2016, Defendant served Plaintiff Ivin Mood (“Plaintiff”) with
Requests for Production of Documents and Interrogatories. Dkt. 66-1, Declaration of Allen
Christiansen, ¶¶ 2-3, Exs. A, B. Plaintiff did not serve responses to the discovery requests. Id. ¶
5.
On February 23, 2017, Defendant filed a Motion to Compel Responses to Requests for
Production and Special Interrogatories (“Motion”). Dkt. 66, MTC.

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On March 20, 2017, the Court granted Defendant’s Motion to Compel Plaintiff to
respond to Requests for Production and Special Interrogatories within ten days, i.e. by March 30,
2017. Dkt. 72.
On March 29, 2017, Defendant received Responses to its Requests for Production and
Special Interrogatories. See Dkt. 73-2, Declaration of Allen Christiansen in support of Motion
(“Christiansen Decl.”), Ex. A. The same day, Defendant’s counsel sent Plaintiff a letter
explaining how Plaintiff’s Responses were deficient and requesting a meet and confer conference
pursuant to Local Rule 37-1. Id. Plaintiff did not respond to Defendant’s March 29, 2017 request
to meet and confer. Id. ¶ 5.
On April 12, 2017, Defendant filed a Motion to Compel seeking to compel further
responses to certain requests for production and interrogatories. Dkt. 73. On May 9, 2017,
Plaintiff filed “Supplemental Reponses to City of Newport Beach Request for Production of
Documents and Further Responses to Special Interrogatories.” Dkt. 82.
On May 16, 2017, the Court granted in part and denied in part Defendant’s Motion to
Compel and awarded Defendant its reasonable expenses incurred in bringing the Motion to
Compel in the sum of $1,320.00. Dkt. 85. The Court found Plaintiff had not provided any
explanation that would make his failure to properly respond to the discovery requests
substantially justified, and there were no circumstances that would make an award of expenses
unjust. Id. Hence, the Court found an award pursuant to Federal Rule of Civil Procedure
37(a)(5)(A) and (C) would be appropriate. Id. In addition, the Court found sanctions
appropriate pursuant to Local Rule 37-4 for Plaintiff’s failure to engage in meet and confer
discussions in good faith. Id.
On May 25, 2017, Plaintiff filed the instant Motion for Reconsideration of the Court’s
award of expenses arguing he is indigent and unable to pay. Dkt. 90. On June 1, 2017, Defendant
filed an Opposition. Dkt. 93. On June 14, 2017, Plaintiff filed a Reply. Dkt. 104.
II.
APPLICABLE LAW
Local Rule 7-18 provides
A motion for reconsideration of the decision on any motion may be made
only on the grounds of (a) a material difference in fact or law from that presented
to the Court before such decision that in the exercise of reasonable diligence could
not have been known to the party moving for reconsideration at the time of such
decision, or (b) the emergence of new material facts or a change of law occurring
after the time of such decision, or (c) a manifest showing of a failure to consider
material facts presented to the Court before such decision. No motion for
reconsideration shall in any manner repeat any oral or written argument made in
support of or in opposition to the original motion.
L.R. 7-18.
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Pursuant to Federal Rule of Civil Procedure 37(a)(5)(C), “[i]f the motion is granted in
part and denied in part, the court . . . may, after giving an opportunity to be heard, apportion the
reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C). “[I]ndigency is a factor that
the district court may properly consider in deciding whether to award costs.” Stanley v. Univ. of
S. California, 178 F.3d 1069, 1079 (9th Cir. 1999); see also Nat’l Org. for Women v. Bank of
California, Nat. Ass’n, 680 F.2d 1291, 1294 (9th Cir. 1982); McGill v. Faulkner, 18 F.3d 456, 459
(7th Cir. 1994).
III.
DISCUSSION
Plaintiff argues the Court failed to consider Plaintiff’s homelessness when awarding
Defendant a substantial amount of attorney’s fees. Dkt. 90 at 2. Plaintiff provides evidence in
the form of statements under oath that his “entire monthly income is $200.00 from working a
short, part time schedule, at The Hearthstone Fireplace” and it would take over half a year to
pay the sanction award. Dkt. 104 at 2.
The Court finds an award of expenses to Defendant is still warranted due to Plaintiff’s
repeated failure to timely comply with his discovery obligations as discussed in the Court’s
original order awarding expenses. See Dkt. 85. However, in light of the additional evidence of
Plaintiff’s indigence, the Court finds it appropriate to reduce the award of expenses to Defendant
to the sum of $100.00.1 See Flanagan v. Benicia Unified Sch. Dist., No. CIV. S-07-333
LKK/GGH, 2008 WL 4754668, at *3 (E.D. Cal. Oct. 30, 2008), aff’d, 404 F. App’x 187 (9th
Cir. 2010) (finding an award of costs was not appropriate due to plaintiff’s indigence).
IV.
ORDER
Based upon the foregoing reasons, IT IS THEREFORE ORDERED that:
(1)

Plaintiff’s Motion for Reconsideration is GRANTED; and

(2)
Plaintiff shall pay the sum of $100.00 to Defendant City of Newport Beach no
later than sixty (60) days from the date of this Order.

1

Defendant reasonably incurred substantial expenses in connection with the Motion to
Compel and the Court will revisit this issue if Plaintiff fails to comply the Order granting
Defendant’s Motion to Compel further responses to Request for Production Nos. 9 and 11, Dkt.
85, or any other Court order.
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