Mistriel v. Kern County, et al

Filing 80

ORDER regarding the City of Bakersfield's Motion to Compel, document 72 . The City of Bakersfield shall re-serve its discovery requests on plaintiff at his current address of record and file a certificate of establishing re-service of said requ ests. Plaintiff shall, within 21 days of re-service of the requests, either file a statement of opposition to the City's Motion to Compel or, file a statement of non-opposition to the motion and then serve responses to the discovery requests within 45 days of re-service and, should plaintiff fail to do either, the Court will grant the City's Motion to Compel. Order signed by Magistrate Judge Sheila K. Oberto on 2/29/2012. (Rooney, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ROBERT GLEN MISTRIEL,

CASE NO. 1:03-cv-06922-AWI-SKO

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ORDER REGARDING CITY OF
BAKERSFIELD'S MOTION TO
COMPEL

Plaintiff,
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v.
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(Docket No. 72)
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KERN COUNTY, et al.,

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Defendants.
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/
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I.

INTRODUCTION

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On January 23, 2012, Defendant City of Bakersfield (the "City") filed a motion to compel

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responses to its special interrogatories, set one, and its request for production of documents, set one

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(collectively, "discovery requests"), served on Plaintiff on September 9, 2011. (Doc. 72.)

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According to the City, Plaintiff failed to timely respond to the discovery requests.

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For the reasons set forth below, the Court ORDERS that (1) the City re-serve its discovery

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requests, (2) Plaintiff file an opposition or a statement of non-opposition within 21 days of service

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of the requests for production, and (3) if Plaintiff elects to file a statement of non-opposition to the

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City's motion, Plaintiff is ordered to respond to the discovery requests within 45 days of re-service

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of the requests.

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II.

DISCUSSION

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On August 2, 2011, Plaintiff filed a notice of change of address to Kern Valley State Prison,

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Delano, California, 93216. (Doc. 55.) On September 9, 2011, the City served its discovery requests

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by mail on Plaintiff at High Desert State Prison, (3030), P.O. Box. 3030, Susanville, California,

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96127-3030. (See Doc. 72-3, p. 10, 22.) Plaintiff's responses were due on October 27, 2011, 45 days

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after service of the requests plus an additional 3 days for service by mail. Counsel for the City

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granted Plaintiff until November 7, 2011, to respond to the discovery requests, but no responses were

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provided.1 (Doc. 72-1, 2:18-20; Doc. 72-2, ¶ 4.) On January 23, 2012, the City filed a motion to

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compel Plaintiff's responses to these discovery requests. The motion to compel was served on

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Plaintiff at Kern Valley State Prison, Delano, California 93216-5103, his current address of record.

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To date, Plaintiff has not filed any statement in opposition to the City's motion to compel.

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As indicated above, at the time of service of the discovery requests, Plaintiff's current address

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was Kern Valley State Prison, and not High Desert State Prison where the discovery requests were

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served. (See Doc. 72-3, p. 10, 22.) To cure this service issue, re-service of the discovery requests

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is necessary. From the date of re-service of the discovery requests, Plaintiff shall have 21 days to

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file any opposition to the City's motion to compel. Alternatively, Plaintiff may file a statement of

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non-opposition within 21 days of re-service of the discovery requests. If Plaintiff elects to file a

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statement of non-opposition to the City's motion to compel, Plaintiff must serve responses to the

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City's discovery requests within 45 days of being re-served. If Plaintiff fails to either oppose the

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motion to compel or provide discovery responses within the time frame provided, the Court will

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grant the City's motion to compel.

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III.

CONCLUSION AND ORDER

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For the reasons stated above, IT IS HEREBY ORDERED that:

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1.

The City of Bakersfield shall re-serve its discovery requests to Plaintiff at his current

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It is unclear whether Plaintiff requested an extension of time to respond to the discovery requests from the City
or whether the City provided Plaintiff an extension of time to respond to the discovery requests as an unsolicited
courtesy. In other words, despite the proofs of service indicating that the discovery requests were served on Plaintiff
at High Desert State Prison, it also appears that Plaintiff may have received these requests and requested an extension
of time to respond.

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address of record;

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2.

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The City of Bakersfield shall file a certificate of service establishing re-service of the
discovery requests;

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3.

Within 21 days of re-service of the requests, Plaintiff shall either:

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a.

File a statement in opposition to the City's motion to compel; OR

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b.

File a statement of non-opposition to the motion and then serve responses to

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the discovery requests within 45 days of re-service of the discovery requests;

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and

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4.

Should Plaintiff fail to either file an opposition to the City's motion to compel or file

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a statement of non-opposition and serve discovery responses within 45 days from the

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date of re-service of the requests, the Court will grant the City's motion to compel

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such responses.

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IT IS SO ORDERED.

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Dated:
ie14hj

February 29, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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