Fearence v. Schulteis et al

Filing 73

ORDER Denying Plaintiff's Motion For Discovery Sanctions Under Rule 37(b) (Doc. 55 ), signed by Magistrate Judge Gary S. Austin on 2/14/2014. (Fahrney, E)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JAQUES FEARENCE, 10 Plaintiff, 11 12 vs. 1:08-cv-00615-LJO-GSA-PC ORDER DENYING PLAINTIFF’S MOTION FOR DISCOVERY SANCTIONS UNDER RULE 37(b) (Doc. 55.) L. L. SCHULTEIS, et al., 13 Defendants. 14 15 16 I. BACKGROUND 17 Jaques Fearence ("Plaintiff") is a prisoner proceeding pro se in this civil rights action 18 pursuant to 42 U.S.C. ' 1983. This case now proceeds on the Third Amended Complaint filed 19 by Plaintiff on November 22, 2013, against defendants Hopkins, Davis, Duffy, and Beckett for 20 failure to protect Plaintiff, and against defendants Hopkins, Busby, Davis, Duffy, and Beckett 21 for conspiracy to use excessive force. (Doc. 64.) 22 On September 16, 2013, Plaintiff filed a motion for discovery sanctions under Rule 23 37(b). (Doc. 55.) 24 Plaintiff did not file a reply to the opposition. (Court Record.) 25 II. On September 30, 2013, Defendants filed an opposition. (Doc. 56.) MOTION FOR SANCTIONS -- RULE 37(b) 26 Under Rule 37(b) of the Federal Rules of Civil Procedure, if a party fails to obey an 27 order to provide or permit discovery, the court may issue further just orders which may include 28 compelling compliance with the order or imposing sanctions. Fed. R. Civ. P. 37(b). 1 A. 2 Plaintiff requests the imposition of sanctions upon Defendants based on Defendants’ 3 failure to comply with the forty-five day deadline to provide discovery responses, established in 4 the Court’s discovery/scheduling order of July 15, 2013. Plaintiff argues that as of September 5 12, 2013,1 the date of Plaintiff's motion, the Court’s deadline had expired, and Defendants had 6 not responded to Plaintiff’s discovery requests. Plaintiff declares that on July 25, 2013, he 7 served Defendants with a Request for Production of Documents and Interrogatories, ensuring 8 that Defendants had forty-five days in which to respond. (Declaration of Jaques Fearence, Doc. 9 55 at 2 ¶6.) On September 4, 2013, Plaintiff received a phone call from defense counsel Elliott 10 T. Seals, informing Plaintiff that the forty-five day deadline for responses would not be met, 11 and requesting an extension of time. (Id. ¶¶2,3.) Plaintiff informed defense counsel that 12 Plaintiff did not have the authority to extend the deadline, and that defense counsel would have 13 to file a motion for extension of time with the court. (Id. ¶¶5,6.) Plaintiff's Motion Defendants’ Opposition 14 B. 15 Defendants argue that they complied with the court’s deadline to respond to discovery 16 requests and timely served Plaintiff with their responses. Defendants assert that Plaintiff served 17 each Defendant with a set of Interrogatories and a set of Requests for Production of Documents 18 on July 25, 2013, causing Defendants’ responses to be due forty-five days later on September 9, 19 2013. (Declaration of Jaques Fearence, Doc. 55 at 2 ¶6; Doc. 51.) Defense counsel asserts that 20 on September 4, 2013, he spoke with Plaintiff on the phone and informed him that he would 21 need additional time to respond to the discovery requests. Because of Plaintiff’s unwillingness 22 to agree to an extension of time, Defendants filed a motion for extension of time with the court 23 on September 6, 2013. (Doc. 53.) On September 12, 2013, the court granted Defendants a 24 fourteen-day extension of time, and Defendants assert that they served their responses on 25 Plaintiff on September 24, 2013, within the time provided by the Court’s September 12, 2013 26 order. (Doc. 54.) 27 1 28 Plaintiff's motion for sanctions was signed on September 12, 2013 and filed on September 16, 2013. (Doc. 55 at 3.) 1 C. 2 The court’s discovery/scheduling order, issued on July 15, 2013, informed the parties 3 that “[r]esponses to written discovery requests shall be due forty-five (45) days after the request 4 is first served.” (Doc. 51 at 1 ¶2.) Plaintiff served his requests for discovery on Defendants on 5 July 25, 2013, causing Defendants’ responses to be due by September 9, 2013. (Declaration of 6 Jaques Fearence, Doc. 55 at 2 ¶6.) Plaintiff has not opposed Defendants’ assertion that they 7 served their discovery responses on September 24, 2013. 8 Defendants’ assertion as true, their responses were not untimely because on September 12, 9 2013, the Court granted Defendants fourteen days in which to file their discovery responses. Discussion (Doc. 56 at 2:9-10.) 10 (Doc. 54.) Therefore, Plaintiff's motion for sanctions shall be denied. 11 III. Taking 12 13 CONCLUSION Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff's motion for discovery sanctions, filed on September 16, 2013, is DENIED. 14 15 16 17 IT IS SO ORDERED. Dated: 18 19 20 21 22 23 24 25 26 27 28 February 14, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 6i0kij8d

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