Anderson v. Benedict

Filing 56

ORDER denying without prejudice 45 Motion to Compel signed by Magistrate Judge Gregory G. Hollows on 10/29/13. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRYON ANDERSON,

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No. 2:10-cv-2833 LKK GGH PS

Plaintiff,
v.

ORDER

MCM CONSTRUCTION, INC.,
Defendant.

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Pending before the court is a filing by plaintiff wherein he states that he “would like to file

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a motion to compel.” (ECF No. 45.) He initially noticed the matter for hearing on October 3,

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2013; however, it was apparent that plaintiff had not followed the proper procedures dictated by

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E.D. Local Rule 251. Therefore, the matter was vacated from the calendar, and the parties were

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ordered to meet and confer and file a joint statement by October 10, 2013. A joint statement was

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not filed, but plaintiff filed a letter on October 11, 2013, indicating that he had tried to schedule a

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meet and confer but was informed by defendant that it was unnecessary. Defendant was then

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ordered to file a response to this letter, and did so on October 18, 2013.

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The declaration of defense counsel sets forth the meet and confer efforts which included

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multiple telephone conversations prior to October 3rd. (Wohl Decl., ¶ 2.) According to Mr.

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Wohl, these discussions included his offer for plaintiff to meet with him in person if he wished.

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(Id.) He also offered for plaintiff to take the depositions of the MCM foreman and supervisor
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concerning plaintiff’s allegations that his time sheets were fabricated. (Id. at ¶ 3.) In addition,

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counsel states that MCM produced all documents related to plaintiff’s employment as well as

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documents that plaintiff had not requested. Mr. Wohl states that the phone conversations made it

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clear to him that plaintiff’s discovery complaints were really about MCM’s defenses in the case.

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(Id.) In fact, plaintiff told Mr. Wohl that it was not necessary to meet in person because MCM

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continued to deny the allegations and refused to admit the daily time sheets were fabricated. (Id.

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at ¶ 6.) On October 3, 2013, Mr. Wohl states that he sent plaintiff a letter confirming their meet

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and confer efforts and informing plaintiff that if he did not think the discovery issue was resolved,

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to let Mr. Wohl know so that they could prepare a joint statement by the October 10th deadline.

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Plaintiff did not respond to this letter. (Id. at ¶ 5.)
Based on counsel’s declaration, it is apparent that plaintiff’s dispute lies not with the

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inability to obtain discovery from defendant, but with the defenses in the case. Plaintiff’s actions

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indicate that he does not seek to pursue his motion to compel.

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Accordingly, IT IS ORDERED that: Plaintiff’s motion to compel, filed September 6,

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2013, (ECF 45), is denied without prejudice.

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Dated: October 29, 2013

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/Anderson2833.mtc

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