Wallis et al v. Centennial Insurance Company Inc et al

Filing 175

ORDER signed by Magistrate Judge Gregory G. Hollows on 11/13/2012 VACATING 150 Motion to deem admitted the Requests for Admission, Motion for Sanctions; VACATING the Motion Hearing as to 150 Motion to deem admitted the Requests for Admission, Motion for Sanctions. (Michel, G)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE EASTERN DISTRICT OF CALIFORNIA

8

DALE M. WALLIS, et al.,

9

Plaintiffs,

10
11

No. 2:08-cv-2558 WBS GGH

vs.
CENTENNIAL INSURANCE COMPANY, INC., et al.,

12

Defendants.

ORDER
/

13
14

Presently pending on this court’s law and motion calendar for November 14,

15

2012, is plaintiffs’ motion to deem admitted their requests for admissions (“RFAs”), set one, and

16

for sanctions. The motion was originally filed on October 10, 2012 and noticed for hearing on

17

November 1, 2012, but was vacated by order of October 30, 2012 for failure to file a joint

18

statement in accordance with E. D. Local Rule 251. During a November 1, 2012 hearing on

19

defendants’ motion, the court re-set the hearing on plaintiffs’ motion for November 14, 2012 and

20

directed the parties to file a joint statement by November 12, 2012.1

21

\\\\\

22
23
24
25
26

1

Plaintiff’s counsel stated at hearing her view that no joint statement was necessary
because her motion was one for sanctions, i.e., to have requests for admissions admitted because
the stated objections were insufficient. However, the motion to address the sufficiency of
objections to requests for admissions is a motion made pursuant to Fed. R. Civ. P. 36 (a)(6), not
Rule 37. As such it is not a motion for “sanctions.” In any event, once the undersigned stated in
open court that a joint statement was necessary, that was the end of the matter concerning
whether a joint statement was necessary.
1

1

Based on the parties’ failure to comply with Rule 251, a situation which the

2

undersigned finds more attributable to plaintiffs’ counsel than defendants’, plaintiffs’ motion is

3

vacated from the calendar for November 14, 2012.

4

As of Friday, November 9, 2012 at 5:00, when defendants filed objections to the

5

November 14, 2012 hearing, plaintiffs had not submitted a completed joint statement to

6

defendants (complete except for defendants’ arguments). The incomplete statement was a

7

skeletal introduction and reiteration of the discovery requests at issue – all of them. It is

8

incomprehensible why plaintiffs’ counsel did not simply make her argument in that incomplete

9

draft joint statement sent to defendants on November 7, 2012, as the relevance and/or inability to

10

respond issues are collective arguments that can be made to all outstanding RFAs. By not

11

sending the complete statement on November 7th, plaintiff’s counsel simply set up the scenario

12

which allowed defendants to drag their feet again. Ms. Mendoza herself admitted in her e-mails

13

to defendants that plaintiffs’ position was essentially the same as set forth in their motion. That

14

being the case, how hard would it have been to simply incorporate the arguments? To the extent

15

that plaintiffs had something else to add to their argument, Ms. Mendoza set up a situation where

16

she, as counsel for the moving party, could get to wait to make her argument after seeing

17

defendants’ response, which is not appropriate. Finally, it should be noted that at the November

18

1st hearing pertaining to scheduling of this matter, defendants requested a date certain for the

19

transmission of the joint statement from plaintiffs to them, but Ms. Mendoza stated that such was

20

not necessary and she would get the statement to defendants in plenty of time. As a result,

21

plaintiffs have now filed a “joint statement” which contains no complete-in-itself argument by

22

plaintiffs or defendants.

23

Defendants’ objections, on the other hand, are quite possibly a passive aggressive

24

response to the district court’s order refusing to stay the action because of the liquidation

25

activities in New York. Any argument that defense counsel may not be able to find someone on

26

behalf of the client to respond to discovery is questionable in light of the fact that this discovery
2

1

was first propounded sometime before July 30, 2012,2 long before Super Storm Sandy arrived on

2

the scene, and defense counsel is presumably being compensated, so there must be someone in

3

charge of the “liquidating” insurance companies. However, whether or not the defendants’

4

arguments are well taken or simply a stall tactic, the court’s order for a joint statement was not to

5

be ignored.

6

Accordingly, IT IS ORDERED that:

7

1. Plaintiffs’ motion to deem admitted their requests for admissions (“RFAs”), set

8

one, and for sanctions, filed October 10, 2012, (dkt. no. 150), is VACATED; and

9

2. The hearing on plaintiffs’ motion is VACATED from the calendar for

10

November 14, 2012.

11

DATED: November 13, 2012

12
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

13
14
15
16
GGH:076:Wallis2558.vac.wpd

17
18
19
20
21
22
23
24
25
26

2

Plaintiffs’ motion sets forth a convoluted procedural history and does not state when
this discovery was propounded, but does state that defendants received the RFAs on July 30,
2012. (Dkt. no. 151 at n. 3.)
3