Hartline v. National University

Filing 105

ORDER signed by Magistrate Judge Allison Claire on 2/22/2018 GRANTING 102 Defendant's Motion to Compel; Plaintiff must produce all documents responsive to RFP Nos. 1, 10, 11, 12, and 31 within 14 days of this order; Plaintiff's failure to comply with this order may result in sanctions, up to and including dismissal of this case; in order to accommodate any necessary further discovery-based motions practice in light of this order, the court will sua sponte extend the discovery deadline in this case, which currently sits at 3/7/2018, to 4/11/2018; Thus, 4/11/2018 is the date by which any discovery motion must be heard by this court and complied with.(Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DOYLE DEAN HARTLINE,

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No. 2:14-cv-00635-KJM-AC

Plaintiff,
v.

ORDER

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NATIONAL UNIVERSITY,

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Defendant.

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This matter is before the court on defendant’s motion to compel. This discovery motion

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was referred to the undersigned pursuant to E.D. Cal. R. 302(c)(1). This matter is also referred to

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the undersigned because plaintiff brings this action in pro se. E.D. Cal. R. 302(c)(21). Plaintiff

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and defendant were scheduled to attend a hearing on February 21, 2018 at 10:00 a.m. Defendant

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appeared by telephone, but plaintiff failed to appear. ECF No. 104. For the reasons stated below,

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defendant’s motion is GRANTED.

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I.

Relevant Background

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Because plaintiff’s diligence is at issue, the court recites the procedural history of the case

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in some detail. Plaintiff filed this action on March 7, 2014 alleging that he faced various forms of

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discrimination on the basis of his disability while a student of defendant, National University.

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ECF No. 1 at 21-22. Defendant filed a motion to dismiss on August 4, 2014. ECF No. 7.

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Plaintiff requested a 120-day stay of the case, which the court granted in part by providing
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plaintiff additional time to respond to defendant’s motion to dismiss. ECF Nos. 11, 13. Plaintiff

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made a second request for additional time, which the court granted in part. ECF Nos. 14, 15.

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Plaintiff’s initial complaint was dismissed on January 23, 2015, and plaintiff was given an

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opportunity to file an amended complaint. ECF No. 24.

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After requesting and receiving an extension of time (ECF Nos. 27, 28), plaintiff filed a

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first amended complaint on April 24, 2015. ECF No. 29. Defendant filed a second motion to

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dismiss on May 14, 2015. ECF No. 32. After a briefing period that included a request for an

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extension of time (ECF No. 36), which the court denied insofar as it requested to move the

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hearing date of defendant’s motion (ECF No. 40), the undersigned recommended defendant’s

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motion to dismiss be granted with partial leave to amend. ECF No. 43. Plaintiff requested and

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received an extension of time to object to the undersigned’s findings and recommendations. ECF

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Nos. 44, 45. Following the extended objections period, the district judge adopted in full the

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undersigned’s findings and recommendations on February 4, 2016. ECF No. 55.

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Plaintiff sought and received, to a lesser degree than requested, an extension of time to file

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his second amended complaint. ECF Nos. 56, 59, 61. Plaintiff filed his second amended

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complaint (“SAC”) on April 4, 2016. ECF No. 63. Defendant again moved to dismiss. ECF No.

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66. Plaintiff requested and received an extension of time to respond to defendant’s motion. ECF

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Nos. 67, 68. On August 18, 2016, the undersigned recommended denial of defendant’s motion to

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dismiss (ECF No. 74), and this recommendation was adopted in full on March 2, 2017. ECF No.

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83. On April 25, 2017 defendant filed an answer to plaintiff’s SAC, which remains the operative

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complaint. ECF No. 84. On May 18, 2018, following a status conference at which plaintiff and

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defendant were both present (ECF No. 88), the undersigned issued the pretrial scheduling order in

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this case. ECF No. 89. The scheduling order set December 27, 2017 as the date for close of

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discovery, and March 4, 2019 as the date for a jury trial. Id. at 8.

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Plaintiff was served with requests for production (“RFPs”), special interrogatories, and a

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deposition notice for a December 15, 2017 deposition on October 5, 2017. Declaration of Evan

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A. Peña (Peña Decl.) at ¶ 2, Exh. A-B. 1 Plaintiff’s responses to the RFPs were due November 8,

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2017. See, Fed. R. Civ. P. 26(b)(2), 34(b)(2)(A). No response was timely received. Peña Decl.

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at ¶ 3. On November 15, 2017, plaintiff filed a motion to stay this case, citing general health

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concerns and a potential surgery occurring in January of 2018. ECF No. 93. The court denied

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plaintiff’s motion to stay, but provided for an extension of the discovery deadlines in light of

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plaintiff’s potential surgery. ECF No. 99 at 2. The court stated that “plaintiff’s general medical

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issues have been in existence since before this case began and do not justify a stay of the entire

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case.” Id. (citing ECF No. 93 at 1, which noted Mr. Hartline’s health problems have been an

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issue since 2011). The court set several new pre-trial deadlines, including a new discovery

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deadline of March 7, 2018. Id. While the motion to stay was pending, defendant notified

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plaintiff that it was taking his deposition off calendar, but would later serve an amended

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deposition notice. Peña Decl. at Exh. D.

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Following the court’s order denying a stay but extending discovery deadlines, defendant

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sent plaintiff an amended deposition notice setting his deposition for January 17, 2018. Peña

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Decl. at ¶ 5. Defendant also requested that plaintiff respond to the pending discovery requests by

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January 10, 2018 so that defendant could review the documents in advance of plaintiff’s

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deposition. Id. at Exh. E (December 21, 2017 Letter). On January 10, defendant called plaintiff

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because plaintiff had not responded to any discovery requests. Id. at ¶ 6. During the

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conversation, plaintiff stated he could not appear at his January 17, 2018 deposition, and that he

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would like to revisit the issue in a few weeks. Id. Defendant followed up with a letter stating,

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pursuant to the court’s revised discovery schedule, it could take plaintiff’s deposition on or before

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January 24, 2018, but no later. Id. at Exh. F (January 11, 2018 Letter). Again, defendant

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requested responses to pending discovery before plaintiff’s deposition. Id.

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Plaintiff did not produce documents or indicate when he could appear for his deposition

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following the January 11, 2018 letter, so defendant reached out again by phone on January 16,

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2018. Peña Decl. at ¶ 7. This time, plaintiff agreed to appear for a deposition on January 24,

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Defendant’s factual representations regarding the course of discovery are supported by
documentary evidence and a declaration of counsel, and have not been undisputed by plaintiff.
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2018. Id. Plaintiff asked defendant to provide copies of the discovery originally served in

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October. Id. Defendant sent plaintiff a letter on January 17, 2018 including an amended

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deposition notice and copies of the pending discovery requests. Id. at Exh. G (January 17, 2018

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Letter). Plaintiff appeared for his deposition on January 24, 2018, bringing with him some

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documents he believed were responsive to defendant’s RFPs. Peña Decl. at ¶ 8.

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During plaintiff’s deposition, he testified that he keeps a calendar which likely lists dates

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relevant to his studies at National University and his medical treatment. Peña Decl. at Exh. H

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(Hartline Deposition), at 191:8-20, 219:21-220:7. Plaintiff did not bring a copy of the calendar to

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the deposition but stated he would provide defendant a copy. Id. at 191:23-25, 220:22-221:25.

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Plaintiff testified that he provided defendant medical records shortly after he enrolled, but that the

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university lost the records. Id. at 41:11-18, 43:6-19. Defendant also testified that his disability

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consists of injuries to his spine, knees, right leg and food, and a stroke he suffered in 2011,

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around the time that National University arranged two student teaching placements for him. Id. at

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28:13-24, 41:11-18, 43:6-19, 141:5-14.

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Following the deposition, defendant sent a letter to plaintiff explaining how documents

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plaintiff described in his deposition were responsive to outstanding discovery requests. Peña

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Decl. at Exh. I (January 30, 2018 Letter). On February 5, 2018, plaintiff notified defendant that

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he sent the calendar and medical records described above, along with other documents. Peña

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Decl. at ¶ 11. Defendant received the documents on February 13, 2018. Id. Although plaintiff

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was enrolled at National University for more than four years, plaintiff only produced three

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months of his calendar (August through October 2011) and 12 pages of medical records

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(including only two appointments that took place during his enrollment at National University).

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Id. Defendant promptly contacted plaintiff, who confirmed that he likely has a more extensive

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calendar and other medical records, but stated he has not produced them because he has not

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searched all of the boxes where he stores documents. Id.

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At the hearing on February 21, 2018, counsel notified the court that plaintiff had sent a

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third production of documents to defendant. However, defendant stated that the third production

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did not address any concerns presented by the pending motion to compel, as it was largely
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duplicative of previous productions.

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II.

Motion

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Defendant asks the court to compel responses to five requests for production: RFP Nos. 1,

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10, 11, 12, and 31. ECF No. 103 at 3. Plaintiff did not contribute to the “joint statement” filed by

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the defendant in accordance with E.D. Cal. Rule 251(c). Defendant stated that counsel contacted

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plaintiff multiple times in an effort to obtain plaintiff’s contribution to the statement and sent him

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a draft for his additions, but as of the date of filing, plaintiff had not returned or agreed to

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contribute to the draft joint statement. ECF No. 103 at 2, n. 1.

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III.

Discussion

Plaintiff has inexcusably failed to comply with his discovery obligations, and must

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therefore be compelled to submit full and complete responses to outstanding RFPs as requested

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by defendant. “Parties may obtain discovery regarding any nonprivileged matter that is relevant

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to any party’s claim or defense . . . Relevant information need not be admissible at the trial if the

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discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R.

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Civ. P. 26(b)(1). Federal Rules 33 and 34 provide that discovery requests must be responded to

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within 30 (or in some cases 45) days. Richmark Corp. v. Timber Falling Consultants, 959 F.2d

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1468, 1473 (9th Cir. 1992). In response to a request for production of documents under Rule 34,

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a party is to produce all relevant documents in his “possession, custody, or control.” Fed. R. Civ.

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P. 34(a)(1). Accordingly, a party has an obligation to conduct a reasonable inquiry into the

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factual basis of his responses to discovery. National Ass’n of Radiation Survivors v. Turnage,

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115 F.R.D. 543, 554– 56 (N.D. Cal. 1987). Based on that inquiry, a party responding to a request

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for production “is under an affirmative duty to seek that information reasonably available” to it

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and make an appropriate production of responsive documents. Gray v. Faulkner, 148 F.R.D. 220,

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223 (N.D. Ind. 1992) (citation omitted).

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Defendant seeks production in response to RFP No. 1 (“[produce] All DOCUMENTS in

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which YOU have attempted to record or document any events during the course of YOUR

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enrollment as a student at NU, including but not limited to any DOCUMENTS describing or

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relating to any of the acts or events alleged in YOUR SAC”), RFP No. 10 (“[produce] All
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DOCUMENTS evidencing that YOU have been diagnosed with a disability”), RFP No. 11

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(“[produce] All DOCUMENTS evidencing that YOU suffered from a disability while YOU were

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a student at NU”), RFP No. 12 (“[produce] All DOCUMENTS evidencing or describing any and

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all treatment YOU received from any physician, psychiatrist, psychologist, therapist, counselor,

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or other medical or healthcare professional of any kind, including but not limited to bills,

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prescriptions and medical records, for YOUR alleged disability”), and RFP No. 31 (“[produce]

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All medical records, prescriptions, or other DOCUMENTS regarding any treatment YOU have

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sought from a physician, psychiatrist, therapist, counselor, or other healthcare professional

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because of any injury that YOU believe resulted from any of the conduct alleged in YOUR

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COMPLAINT”). Plaintiff has not made any objections to these requests for production.

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While the court recognizes that plaintiff is proceeding in pro se, and understands the

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challenges that accompany pro se status, that status does not absolve plaintiff of his duty to

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comply with the applicable rules of litigation, including his discovery obligations. Carter v.

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C.I.R., 784 F.2d 1006, 1009 (9th Cir. 1986) (holding that although a party is pro se, he is

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“expected to abide by the rules of the court in which he litigates”). It is evident from the record

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of this case, discussed above, that plaintiff has not complied with his discovery obligations. The

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court is particularly concerned that plaintiff acknowledged – after his deposition and near the end

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of the discovery period – that additional responsive documents had not been produced because he

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had not searched all of the boxes where he stores documents. Peña Decl. at ¶ 11. Plaintiff was

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obliged to search for all relevant documents at the beginning of the discovery period. This case

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has been pending for nearly four years; it is simply inexcusable that plaintiff has not gathered

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documents relevant to this litigation and produced all extant responsive documents in discovery.

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Plaintiff will be provided 14 days from the date of this order to produce all remaining

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responsive documents. As litigation proceeds, plaintiff will not be able to rely on any document

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that he does not produce in this timeframe. This means that plaintiff will be barred from using

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unproduced documents at trial, as well as with respect to pre-trial motions such as a motion for

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summary judgment pursuant to Fed. R. Civ. P. 56.2 Plaintiff’s failure to produce all responsive

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documents may result in further sanctions, such as dismissal of this case for failure to comply

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with discovery obligations pursuant to Fed. R. Civ. P. 37(b)(2)(A)(v).

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IV. Conclusion

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For the reasons explained above, the court orders as follows:

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1. Defendant’s motion to compel is GRANTED. Plaintiff must produce all documents

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responsive to RFP Nos. 1, 10, 11, 12, and 31 within 14 days of this order;

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2. Plaintiff will be precluded from using as evidence in his case any responsive document

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that he does not timely produce to defendant;

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3. Plaintiff’s failure to comply with this order may result in sanctions, up to and

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including dismissal of this case;

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4. In order to accommodate any necessary further discovery-based motions practice in

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light of this order, the court will sua sponte extend the discovery deadline in this case,

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which currently sits at March 7, 2018, to April 11, 2018. Thus, April 11, 2018 is the

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date by which any discovery motion must be heard by this court and complied with.

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IT IS SO ORDERED.
DATED: February 22, 2018

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A summary judgment motion asks the court for judgment in a party’s favor without a trial. The
court considers the evidence that has been produced in discovery, and determines whether or not
the state of that evidence requires a trial.
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