Stewart v. City of Porterville, et al.

Filing 20

ORDER GRANTING 19 Defendants' Motion to Compel Discovery signed by Magistrate Judge Sheila K. Oberto on 8/25//2011. (Timken, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN STEWART,

CASE NO. 1:10-cv-00199 LJO SKO

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Plaintiff,
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v.

ORDER GRANTING DEFENDANTS’
MOTION TO COMPEL DISCOVERY

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CITY OF PORTERVILLE, et al.,

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(Doc. 19.)

Defendants.
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I. INTRODUCTION

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On August 5, 2011, Defendants City of Porterville, Aaron Sutherland, and Mark Azevedo

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(collectively, “Defendants”) filed a motion to compel based on Plaintiff John Stewart’s (“Plaintiff”)

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complete failure to provide responses to Defendants’ outstanding discovery requests consisting of

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Interrogatories and Requests for Production of Documents (“RFPs”). (Doc. 19.) Plaintiff has not

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filed an opposition to the motion.

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The Court has reviewed the motion and supporting documents and determined that this

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matter is suitable for decision without oral argument pursuant to Local Rule 230(g). For the reasons

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set forth below, Defendants’ motion is GRANTED.

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II. DISCUSSION
A.

Defendants’ Interrogatories

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Federal Rule of Civil Procedure 33(b)(1)(B)(2) requires that, unless otherwise agreed upon,

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the responding party must serve its answers and any objections to interrogatories within thirty (30)
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days after being served. Additionally, Rule 33(b)(1)(B)(3) and (5) require that each interrogatory,

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“to the extent it is not objected to, be answered separately and fully in writing and under oath” and

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signed by the answering party. Pursuant to Rule 33(b)(1)(B)(4), any untimely objection to the

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interrogatory is waived, unless the court excuses the failure for good cause.

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Defendants’ Interrogatories were served on Plaintiff on November 16, 2010, and no

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responses were filed within the 30-day deadline. (Doc. 19-2, ¶¶ 3-7, Exh. A.) As of August 4, 2011,

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despite letters sent by Defendants’ counsel to Plaintiff’s counsel, no responses had been received and

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the discovery requests remain outstanding. (Doc. 19-2, ¶¶ 3-7, Exh. C.) As such, the Court

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GRANTS Defendants’ motion to compel Interrogatory responses and orders Plaintiff to serve written

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responses to Defendants’ Interrogatories on or before September 2, 2011. All objections to the

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Interrogatories have been waived.

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B.

Defendants’ Request for Production of Documents

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Pursuant to Federal Rule of Civil Procedure 34(a), a party may request production of

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documents. Rule 34(b)(2)(B) requires parties answering RFPs to “either state that inspection and

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related activities will be permitted as requested or state an objection to the request, including the

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reasons” in each response. If the party to whom the request was directed fails to appropriately

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respond, Rule 37(a)(1) allows the requesting party to “move for an order compelling disclosure or

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discovery.”

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Defendants’ RFPs were served on November 16, 2010, and no responses were received by

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the 30-day deadline; further, Plaintiff has failed to respond to Defendants’ counsel’s letters

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requesting responses. (Doc. 19-2, ¶¶ 3-7, Exhs. B, C.) As Plaintiff has failed to provide responses,

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the Court GRANTS Defendants’ motion to compel and orders Plaintiff to serve responses to

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Defendants’ RFPs on or before September 2, 2011. All objections to the RFPs have been waived.

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If Plaintiff determines that there are no documents responsive to any given RFP, he shall so state in

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a written answer to the RFPs.

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C.

Attorney’s Fees and Costs

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Pursuant to Rule 37(a)(5)(A), if a motion to compel discovery responses is granted, and if

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the Court gives the non-responsive party an opportunity to be heard, then the court “must . . . require
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the party . . . whose conduct necessitated the motion, the party or attorney advising that conduct, or

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both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s

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fees.” Defendants request attorney’s fees for six hours at a rate of $140.00 per hour, totaling $840.00

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to prepare this motion. (Doc.19-2, ¶ 7.)

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Local Rule 251(e) provides that a party responding to a motion to compel discovery “shall

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file a response . . . not later than seven (7) days before the hearing date.” Plaintiff was afforded an

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opportunity to be heard in opposition to Defendants’ motion to compel and failed to file any response

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whatsoever. (See also Rule 37 advisory committee’s note, 1993 amendments (an opportunity to be

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heard includes both written submissions and oral hearings).) Defendants’ motion to compel has been

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granted, and the Court must require Plaintiff to pay Defendants’ reasonable attorney’s fees. Rule

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37(a)(5)(A).

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The Court finds, however, that the six hours requested by Defendants is excessive

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considering the straight-forward nature of this motion and the lack of opposition, and determines

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instead that three hours is a more reasonable amount of time. Accordingly, the Court ORDERS

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Plaintiff to pay Defendants’ reasonable attorney’s fees in the amount of $420 (three hours at $140.00

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per hour).

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Further, as Plaintiff’s counsel has failed to provide any statement or response regarding

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Plaintiff’s complete failure to respond to the discovery requests and has not responded to counsel

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for Defendants’ letters regarding the discovery disputes, it is not clear to the Court if counsel’s

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conduct, at least in part, necessitated the filing of this motion. As noted above, Rule 37(a)(5)(A)

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provides that if an attorney advises conduct that results in the necessity of an opposing party having

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to file a motion to compel discovery responses, then expenses incurred in bringing the motion,

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including reasonable attorney’s fees, may also be imposed on the attorney whose conduct

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necessitated the filing of the motion.

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Here, counsel for Plaintiff’s conduct is especially concerning in light of counsel for Plaintiff’s

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failure to contact Defendants’ counsel regarding this dispute and failure to appear at witness

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depositions in this action. (Doc. 19-2, ¶¶ 5, 7.) As such, the Court ORDERS Plaintiff’s attorney,

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Brian Edward Claypool of Claypool Law Firm, to file a statement with the Court by September 2,
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2011, explaining, without divulging any privileged information, the efforts he made to respond to

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Defendants’ discovery and why he should not be required to pay all or part of the reasonable

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attorney’s fees to Defendants for Plaintiff’s failure to respond.

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D.

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Defendants’ motion also requests that Plaintiff be sanctioned and his case be dismissed for

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failing to respond to discovery. The Court finds that this request is premature as Plaintiff has not

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yet failed to respond to a Court order compelling discovery. Federal Rule of Civil Procedure

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37(b)(1) provides that a party’s failure to comply with a court’s discovery order may be treated as

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contempt of court, and the court may order the imposition of sanctions. Sanctions that may be

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imposed include: (1) directing that the matters embraced in the order or other designated facts be

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taken as established for purposes of the action, as the prevailing party claims; (2) prohibiting the

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disobedient party from supporting or opposing designated claims or defenses, or from introducing

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designated matters into evidence; (3) striking pleadings in whole or in part; (4) staying further

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proceedings until the order is obeyed; (5) dismissing the action or proceeding in whole or in part;

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or (6) rendering a default judgment against the disobedient party. Fed. R. Civ. P. 37(b)(2)(A)(i)-(vi).

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The Court therefore ORDERS Defendants to file a status report by September 6, 2011,

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indicating whether Plaintiff has complied with this order and whether there are any disputes

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regarding the responses provided. Plaintiff is cautioned that failure to comply with the Court’s order

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to provide discovery responses may result in a recommendation that this action be dismissed.1

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Additional Sanctions

III. CONCLUSION

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Accordingly, IT IS HEREBY ORDERED THAT:

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Defendants’ motion to compel responses to Interrogatories and Requests for
Production of Documents is GRANTED;

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The Court notes that Defendants have a hearing set before District Judge Lawrence J. O'Neill on September
7, 2011, for a motion to dismiss due to Plaintiff's failure to prosecute. (Doc. 18.)

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Plaintiff is ORDERED to serve written responses to Defendants’ Interrogatories
and Requests for Production of Documents by September 2, 2011;2

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3.

Plaintiff is ORDERED to pay Defendants’ attorney, John L. Rozier of Nelson &

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Rozier, reasonable attorney’s fees in the amount of $420 within thirty (30) days of

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the date of this order;

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4.

Plaintiff’s counsel, Brian Edward Claypool of Claypool Law Firm, is ORDERED

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to file with the Court by September 2, 2011, a statement explaining the efforts he

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made to comply with Defendants’ discovery requests and why he should not be

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responsible to pay all or part of the aforementioned reasonable attorney’s fees

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awarded due to his client for failure to provide discovery responses; and

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5.

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Defendants are ORDERED to file a status report regarding Plaintiff’s compliance
with this order by September 6, 2011.

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IT IS SO ORDERED.

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Dated:
ie14hj

August 25, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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This date reflects the application of the Federal Rules of Civil Procedure 6(a)(1)(C), 6(a)(6)(A), and 6(d).
Responses shall be served on Defendants by September 2, 2011; no additional days are to be added pursuant to Rule 6.

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