Morgan v. Tilton et al

Filing 81

ORDER Granting Defendant's Motion To Compel (Doc. 75 ), ORDER For Plaintiff To Respond To Defendant's First Set Of Interrogatories Within Twenty Days, signed by Magistrate Judge Gary S. Austin on 9/25/2013. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KELLY MORGAN,

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1:08-cv-00233-LJO-GSA-PC
ORDER GRANTING DEFENDANT’S
MOTION TO COMPEL
(Doc. 75.)

Plaintiff,

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vs.

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JAMES TILTON, et al.,

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Defendants.

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I.

ORDER FOR PLAINTIFF TO
RESPOND TO DEFENDANT’S FIRST
SET OF INTERROGATORIES WITHIN
TWENTY DAYS

BACKGROUND
Kelly Morgan (APlaintiff@) is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. ' 1983.

Plaintiff filed the Complaint commencing this action on

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February 15, 2008.

This case now proceeds on Plaintiff=s Third Amended

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Complaint, filed on July 28, 2011, against defendant Correctional Officer (C/O) M. Hernandez

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(ADefendant@) for retaliation and obstruction of mail, in violation of the First Amendment. 1

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(Doc. 45.)

(Doc. 1.)

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On October 26, 2012, the Court issued a Scheduling Order establishing a deadline of

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June 26, 2013, for the parties to complete discovery, including the filing of motions to compel. 2

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All remaining claims and defendants were dismissed from this action by the Court on October 17, 2011,
based on Plaintiff=s failure to state a claim. (Doc. 52.)

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This deadline was not extended and has now expired.
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(Doc. 71.) The deadline for the parties to file pretrial dispositive motions was set for September

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5, 2013.

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November 4, 2013. (Doc. 80.)

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Id.

On September 3, 2013, the dispositive motions deadline was extended to

On March 18, 2013, Defendant filed a motion to compel Plaintiff to respond to

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Defendant’s First Set of Interrogatories. (Doc. 75.) Plaintiff has not filed an opposition.

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II.

MOTION TO COMPEL

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A.

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Rule 33 - Interrogatories

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Pursuant to Rule 33(a), an interrogatory may relate to any matter that may be inquired

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into under Rule 26(b). Fed. R. Civ. P. 33(a)(2). Each interrogatory must, to the extent it is not

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objected to, be answered separately and fully in writing under oath, Fed. R. Civ. P. 33(b)(3),

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and the grounds for objecting to an interrogatory must be stated with specificity, Fed. R. Civ. P.

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33(b)(4).

Legal Standards

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Court’s Scheduling Order

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The court’s Scheduling Order of October 26, 2012, instructed the parties that

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“[r]esponses to written discovery requests shall be due forty-five (45) days after the request is

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first served.” (Doc. 71 at 1 ¶2.) The parties were also informed that “[u]nless otherwise

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ordered, Rule 251 shall not apply, and the requirement set forth in Federal Rules of Civil

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Procedure 26 and 37 . . . shall not apply.3

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Rule 37 - Motions to Compel

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Pursuant to Rule 37(a), a party propounding discovery or taking a deposition may seek

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an order compelling responses when an opposing party has failed to respond or has provided

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evasive or incomplete responses. Fed. R. Civ. P. 37(a)(3)(B). A[A]n evasive or incomplete

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disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.@

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“Federal Rules of Civil Procedure 26 and 37 [require] that a party seeking relief from the court
concerning obligations to respond to requests for discovery certify that he or she has in good faith conferred or
attempted to confer with the other party or person in an effort to resolve the dispute prior to seeking court action
shall not apply. Voluntary compliance with this provision of Rules 26 and 37 is encouraged, however.” (Doc. 71
at 2 ¶5.)
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Fed. R. Civ. P. 37(a)(4). AIt is well established that a failure to object to discovery requests

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within the time required constitutes a waiver of any objection.@ Richmark Corp. v. Timber

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Falling Consultants, 959 F.2d 1468, 1473 (9th Cir.1992) (citing Davis v. Fendler, 650 F.2d

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1154, 1160 (9th Cir.1981)). The moving party bears the burden of demonstrating Aactual and

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substantial prejudice@ from the denial of discovery. See Hallett v. Morgan, 296 F.3d 732, 751

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(9th Cir. 2002) (citations omitted.).
Defendant’s Motion

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B.

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Defendant seeks an order compelling Plaintiff to respond to Defendant’s First Set of

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Interrogatories. Defendant provides evidence that on December 13, 2012, he served Plaintiff

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with a First Set of Interrogatories consisting of three Interrogatories. (Declaration of Phillip L.

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Arthur (“Arthur Decl.”), Doc. 75-1 at ¶2; Doc. 75-2 (Exh. A).)

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Scheduling Order, Plaintiff’s responses to the Interrogatories were due no later than January 31,

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2013.4 (Doc. 71.) Defendant asserts that on February 27, 2013, defense counsel wrote to

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Plaintiff in an attempt to obtain the responses. (Arthur Decl. at ¶3.) As of March 18, 2013, the

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date of Defendant’s motion to compel, Plaintiff had not responded to Defendant’s

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correspondence or provided responses to the Interrogatories. (Id. at ¶4.)

Pursuant to the court’s

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C.

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Based on the evidence set forth above by Defendant, the court finds that Plaintiff failed

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to timely respond to Defendant’s First Set of Interrogatories, thus waiving any objections.

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Plaintiff has not opposed Defendant’s motion. Therefore, Defendant’s motion to compel shall

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be granted.

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III.

Discussion

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Defendant’s motion to compel, filed on March 18, 2013, is GRANTED;

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Pursuant to Rule 6(d), AWhen a party may or just act within a specified time after service and service is
made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under Rule
6(a).) Fed. R. Civ. P. 6(d).
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2.

Plaintiff is required to respond to Defendant’s First Set of Interrogatories within

twenty days of the date of service of this order;

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No objections to the Interrogatories are allowed; and

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4.

Plaintiff’s failure to comply with this order shall result in a recommendation that

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this action be dismissed.

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IT IS SO ORDERED.
Dated:

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September 25, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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