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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAQUES FEARENCE,

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Plaintiff,

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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.,

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Defendants.

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I.

BACKGROUND

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Jaques Fearence ("Plaintiff") is a prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. ' 1983. This case now proceeds on the Third Amended Complaint filed

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by Plaintiff on November 22, 2013, against defendants Hopkins, Davis, Duffy, and Beckett for

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failure to protect Plaintiff, and against defendants Hopkins, Busby, Davis, Duffy, and Beckett

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for conspiracy to use excessive force. (Doc. 64.)

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On September 16, 2013, Plaintiff filed a motion for discovery sanctions under Rule

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37(b). (Doc. 55.)

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Plaintiff did not file a reply to the opposition. (Court Record.)

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II.

On September 30, 2013, Defendants filed an opposition. (Doc. 56.)

MOTION FOR SANCTIONS -- RULE 37(b)

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Under Rule 37(b) of the Federal Rules of Civil Procedure, if a party fails to obey an

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order to provide or permit discovery, the court may issue further just orders which may include

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compelling compliance with the order or imposing sanctions. Fed. R. Civ. P. 37(b).

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A.

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Plaintiff requests the imposition of sanctions upon Defendants based on Defendants’

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failure to comply with the forty-five day deadline to provide discovery responses, established in

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the Court’s discovery/scheduling order of July 15, 2013. Plaintiff argues that as of September

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12, 2013,1 the date of Plaintiff's motion, the Court’s deadline had expired, and Defendants had

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not responded to Plaintiff’s discovery requests. Plaintiff declares that on July 25, 2013, he

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served Defendants with a Request for Production of Documents and Interrogatories, ensuring

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that Defendants had forty-five days in which to respond. (Declaration of Jaques Fearence, Doc.

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55 at 2 ¶6.) On September 4, 2013, Plaintiff received a phone call from defense counsel Elliott

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T. Seals, informing Plaintiff that the forty-five day deadline for responses would not be met,

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and requesting an extension of time. (Id. ¶¶2,3.) Plaintiff informed defense counsel that

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Plaintiff did not have the authority to extend the deadline, and that defense counsel would have

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to file a motion for extension of time with the court. (Id. ¶¶5,6.)

Plaintiff's Motion

Defendants’ Opposition

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B.

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Defendants argue that they complied with the court’s deadline to respond to discovery

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requests and timely served Plaintiff with their responses. Defendants assert that Plaintiff served

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each Defendant with a set of Interrogatories and a set of Requests for Production of Documents

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on July 25, 2013, causing Defendants’ responses to be due forty-five days later on September 9,

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2013. (Declaration of Jaques Fearence, Doc. 55 at 2 ¶6; Doc. 51.) Defense counsel asserts that

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on September 4, 2013, he spoke with Plaintiff on the phone and informed him that he would

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need additional time to respond to the discovery requests. Because of Plaintiff’s unwillingness

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to agree to an extension of time, Defendants filed a motion for extension of time with the court

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on September 6, 2013. (Doc. 53.) On September 12, 2013, the court granted Defendants a

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fourteen-day extension of time, and Defendants assert that they served their responses on

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Plaintiff on September 24, 2013, within the time provided by the Court’s September 12, 2013

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order. (Doc. 54.)

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Plaintiff's motion for sanctions was signed on September 12, 2013 and filed on September 16, 2013.
(Doc. 55 at 3.)

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C.

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The court’s discovery/scheduling order, issued on July 15, 2013, informed the parties

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

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is first served.” (Doc. 51 at 1 ¶2.) Plaintiff served his requests for discovery on Defendants on

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July 25, 2013, causing Defendants’ responses to be due by September 9, 2013. (Declaration of

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Jaques Fearence, Doc. 55 at 2 ¶6.) Plaintiff has not opposed Defendants’ assertion that they

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served their discovery responses on September 24, 2013.

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Defendants’ assertion as true, their responses were not untimely because on September 12,

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2013, the Court granted Defendants fourteen days in which to file their discovery responses.

Discussion

(Doc. 56 at 2:9-10.)

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(Doc. 54.) Therefore, Plaintiff's motion for sanctions shall be denied.

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III.

Taking

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff's motion for

discovery sanctions, filed on September 16, 2013, is DENIED.

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IT IS SO ORDERED.
Dated:

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February 14, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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