Arzaga v. Reed

Filing 75

ORDER GRANTING Defendant Reed's Request for Sanctions 60 ; ORDER for Plaintiff to Pay Defendant's Counsel $1,140.00 for Reasonable Expenses Incurred in Bringing Motions to Compel, signed by Magistrate Judge Gary S. Austin on 7/9/13: Plaintiff is ORDERED to pay monetary sanctions to Defendant's counsel in the amount of $1,140.00. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANIEL ARZAGA,

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Plaintiff,

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1:10-cv-00369-AWI-GSA-PC
ORDER GRANTING DEFENDANT
REED’S REQUEST FOR SANCTIONS
(Doc. 60.)

vs.

ORDER FOR PLAINTIFF TO PAY
DEFENDANT’S COUNSEL $1,140.00 FOR
REASONABLE EXPENSES INCURRED IN
BRINGING MOTIONS TO COMPEL

SGT. REED,

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Defendant.

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I.

BACKGROUND

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Daniel Arzaga (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

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commencing this action on February 8, 2010. (Doc. 1.) This action now proceeds on the

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Amended Complaint filed by Plaintiff on March 31, 2011, against defendant Sergeant Reed

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(“Defendant”), for retaliation and unconstitutional conditions of confinement. (Doc. 11.)

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On May 25, 2012, Defendant filed a motion to compel Plaintiff to provide discovery

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responses. (Doc. 42.)

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motion to compel. (Doc. 54.) On February 13, 2013, the court granted Defendant’s motion,

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ordered Defendant to file an all-inclusive motion to compel, and denied the pending motion to

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compel as moot. (Doc. 59.) On March 14, 2013, Defendant filed an all-inclusive motion to

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compel and requested sanctions for reasonable fees incurred in connection with bringing the

On October 30, 2012, Defendant filed a motion for leave to file another

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motions to compel. (Doc. 60.) On May 29, 2013, the court granted Defendant’s all-inclusive

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motion to compel and ordered Plaintiff to show case, within thirty days, why sanctions should

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not be imposed. (Doc. 69.) On June 13, 2013, Plaintiff filed a response to the order to show

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cause. (Doc. 70.)
Defendant’s request for sanctions is now before the court.

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II.

DISCOVERY SANCTIONS – RULE 37

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Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure provides that if a motion to

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compel is granted, Athe court must, after giving an opportunity to be heard, require the party or

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deponent 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

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attorney's fees. But the court must not order this payment if (i) the movant filed the motion

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before attempting in good faith to obtain the disclosure or discovery without court action; (ii)

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the opposing party's nondisclosure, response, or objection was substantially justified; or (iii)

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other circumstances make an award of expenses unjust.@ Fed. R. Civ. P. 37(a)(5)(A).
Defendants’ Request

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A.

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Defendant requests monetary sanctions for expenses incurred in connection with

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bringing two motions to compel. Counsel for Defendant declares that he had to prepare two

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declarations and two motions, which took approximately six hours at a rate of $190.00 per

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hour, for a total of $1,140.00. (Declaration of Mitchell A. Wrosch, Doc. 60-1 at ¶19.) Counsel

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also approximates the total time and fees for a reply brief and hearing to be eight hours and

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$1,520.00. (Id.)

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Defendant asserts that on January 4, 2012, he served Plaintiff with the first sets of

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Interrogatories, Requests for Admissions, and Requests for Production of Documents,

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requesting documents and information needed to defend Defendant. (Id. at ¶¶3,4 and Exh. A.)

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The requests were not overly burdensome, and were relevant to this lawsuit. (Id. at ¶4.) On

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May 9, 2012, Defendant sent Plaintiff a meet and confer letter, offering Plaintiff an additional

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two weeks to provide and serve responses, but Plaintiff did not respond to the letter. (Id. at ¶7

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and Exh. B.) On May 25, 2012, Defendant filed a motion to compel the first sets of discovery
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responses from Plaintiff. (Id. at ¶9.) On June 7, 2012, the court granted Plaintiff’s request for

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extension of time to conduct discovery. (Doc. 45.)

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On July 6, 2012, Defendant served Plaintiff with a second set of Interrogatories seeking

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information pertaining to Plaintiff’s conditions of confinement claim. (Id. at ¶12 and Exh. C.)

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Plaintiff did not respond to the interrogatories, nor did Plaintiff meet and confer with defense

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counsel. (Id. at ¶13.) Instead, Plaintiff requested an extension of time to respond to discovery,

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which was granted by the court. (Id. at ¶¶13,14.) Plaintiff was ordered to respond by October

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15, 2012. (Doc. 50.)

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On February 13, 2013, the court denied Defendant’s motion to compel filed on May 25,

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2012 as moot, and ordered Defendant to file an all-inclusive motion to compel within thirty

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days. (Doc. 59.) As of March 14, 2013, Plaintiff had not responded to any written discovery or

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met and conferred with defense counsel regarding discovery. (Id. at ¶16.) Defendant argues

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that he has been prejudiced by Plaintiff’s unwillingness to respond to discovery, not only by his

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failure to provide information, but also because of the time that has been spent addressing this

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issue. (Id. at ¶18.)

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B.

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In his response to the court’s order to show cause, Plaintiff fails to make any arguments

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in opposition to Defendant’s request for sanctions, nor does he offer any explanation why he

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was unable to participate in discovery or respond to Defendant’s attempts to meet and confer.

Plaintiff’s Response

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C.

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The court finds that Defendant attempted in good faith to obtain Plaintiff’s discovery

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responses without court action before filing two motions to compel, and the court granted

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Defendant’s all-inclusive motion to compel. Plaintiff has not shown cause why Defendant is

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not entitled to sanctions for Plaintiff’s failure to respond to discovery requests. Moreover, the

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court finds no circumstances which make an award of Defendant’s expenses unjust. Therefore,

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Defendant’s request for sanctions shall be granted.

Discussion

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Defendant requests a grand total of $2,660.00 ($1,140.00 + $1,520.00) in expenses,

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including attorney’s fees, in connection with bringing two motions to compel. Included in
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those expenses is an approximated amount of $1,520.00 for a reply brief and hearing.

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Defendant did not file a reply brief, and no court hearing was necessary. Therefore, Plaintiff

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shall not be required to pay the $1,520.00 approximated amount for a reply brief and hearing.

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However, the court finds Defendant’s remaining expenses of $1,140.00 for preparation of two

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motions to compel and declarations in support of the motions to be reasonable. Accordingly,

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Plaintiff shall be imposed monetary sanctions of $1,140.00 for Defendant’s reasonable

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expenses.

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III.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that:

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Defendant’s request for sanctions, filed on March 14, 2013, is GRANTED; and

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2.

Plaintiff is ordered to pay monetary sanctions to Defendant’s counsel in the

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amount of $1,140.00, representing the reasonable expenses incurred by

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Defendant in bringing two motions to compel.

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IT IS SO ORDERED.
Dated:

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July 9, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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