Johnson v. Elk Horn Gas, Inc.

Filing 34

ORDER signed by Magistrate Judge Deborah Barnes on 1/6/17 ORDERING that Plaintiff's 12/8/16 MOTION to Compel responses to interrogatories and responses to requests for production (ECF No. 32 is GRANTED. Plaintiff's 12/8/16 MOTION for S anctions (ECF No. 32 ) against defense counsel is GRANTED pursuant to Federal Rule 37; and Defense counsel shall, pursuant to Federal Rule 37, pay plaintiff $1,6002 within fourteen days of the date of this order, for attorney's fees and costs incurred by plaintiff's counsel in pursuit of the requested discovery. (Mena-Sanchez, L)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

SCOTT JOHNSON,

12
13
14
15

No. 2:14-cv-0798 MCE DB

Plaintiff,
v.

ORDER

ELK HORN GAS, INC.,
Defendant.

16
17

On January 6, 2017, this matter came before the undersigned for hearing of plaintiff’s

18

motion to compel and for sanctions. Attorney Sara Gunderson appeared on behalf of the plaintiff.

19

Neither the defendant, nor defense counsel appeared at the duly-noticed hearing. At the hearing,

20

plaintiff’s counsel represented that she has not received any communication from defense counsel

21

since the motion to compel and for sanctions was filed. Furthermore, defendant did not file an

22

opposition to the motion to compel and for sanctions, nor did counsel respond to plaintiff’s

23

requests to meet and confer concerning the motion.

24

Local Rule 230(l) provides in part: “Failure of the responding party to file written

25

opposition or to file a statement of no opposition may be deemed a waiver of any opposition to

26

the granting of the motion.” Federal Rule of Civil Procedure 37 provides that the Court “must”

27

require the losing party or attorney or both to pay the costs/fees award, in the absence of an

28

exception. Fed. R. Civ. P. 3737(a)(5)(A). The rule further provides that the court may order
1

1

sanctions if “a party, after being properly served with interrogatories under Rule 33 or a request

2

for inspection under Rule 34, fails to serve its answers, objections, or written response.” Fed. R.

3

Civ. P. 37(d)(1)(A)(ii).

4

Defendant, who is represented by counsel, did not provide any written response to the

5

interrogatories or requests for production that were propounded by plaintiff, nor did defendant

6

respond to the motion or appear at the hearing to offer an explanation or defense of the failure to

7

provide the discovery.

8
9

Upon consideration of the arguments on file and at the hearing, and for the reasons set
forth on the record at the hearing, IT IS HEREBY ORDERED that:
1. Plaintiff’s December 8, 2016 motion to compel responses to interrogatories and

10
11

responses to requests for production (ECF No. 32) is granted;
2. Plaintiff’s December 8, 2016 motion for sanctions (ECF No. 32) against defense

12
13

counsel is granted pursuant to Federal Rule 37; and

14

3. Defense counsel1 shall, pursuant to Federal Rule 37, pay plaintiff $1,6002 within

15

fourteen days of the date of this order, for attorney’s fees and costs incurred by plaintiff’s counsel

16

in pursuit of the requested discovery.

17

Dated: January 6, 2017

18
19
20
21
22
23
24
25
26
27
28

1

Federal Rule 37(d)(3) provides that the court, in its discretion, may levy the sanctions against
the party, the attorney, or both. The court is imposing this sanction against defense counsel and
not defendant. Defense counsel is an officer of this court and is on the docket as defendant’s
counsel of record in this case. Plaintiff’s counsel’s communications concerning discovery have
all been through defense counsel who appears to have stopped responding entirely to all matters
in this case. Given these facts, the court finds it appropriate to impose the sanctions on defense
counsel, rather than defendant.
2

Plaintiff’s counsel supported the amount of the sanctions with a declaration from counsel.
(ECF No. 32-2.) The court is satisfied that the amount is reasonable.
2

1

TIM-DLB:10
DB \ ORDERS \ ORDERS.CIVIL \ john0798.oah.010617

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3