McClintock v. Cooper et al

Filing 83

ORDER signed by Magistrate Judge Kendall J. Newman on 12/3/2020 GRANTING 80 Motion to Compel; ORDERING defendants L. Cantu and J. Cantu to serve Plaintiff with responses to the revised interrogatories within 30 days of the date of this order; and ORDERING Plaintiff may file a Motion to Compel regarding the responses to these interrogatories within 30 days thereafter. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN McCLINTOCK,

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No. 2: 18-cv-0560 JAM KJN P

Plaintiff,
v.

ORDER

T. COOPER, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is plaintiff’ motion to compel. (ECF No. 80.) For

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the reasons stated herein, plaintiff’s motion to compel is granted.

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This action proceeds on the second amended complaint against defendants Allen,

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Armenta, J. Cantu, L. Cantu, Cooper, Walker, Wheeler and Winkler. The pending motion to

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compel alleges that defendants J. Cantu and L. Cantu failed to respond to revised interrogatories.

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See Fed. R. Civ. P. 37(a)(3)(B)(iii) (a party may file a motion to compel if a party fails to answer

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an interrogatory).

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On January 7, 2020, defense counsel received plaintiff’s first set of interrogatories for
defendants L. Cantu and J. Cantu. (ECF No. 81-1 at 2.)
In his declaration submitted in support of the opposition to the pending motion, defense
counsel states that during the course of preparing the interrogatory responses, he spoke with
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defendants L. Cantu and J. Cantu. (Id.) During these phone calls, it was readily apparent to

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defense counsel that defendant L. Cantu was a woman and defendant J. Cantu was a man. (Id.)

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On February 19, 2020, defense counsel served plaintiff with defendant L. Cantu’s

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response to interrogatories and defendant J. Cantu’s response to interrogatories. (Id.)

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On March 6, 2020, defense counsel received an errata sheet from plaintiff. (Id.) This

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document is identical to the errata sheet plaintiff filed on February 28, 2020. (Id.; see also ECF

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No. 37). In this errata sheet, plaintiff states that he intended the interrogatories delivered to

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defendant L. Cantu to be addressed by a woman, and the interrogatories addressed to defendant J.

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Cantu to be addressed by a man. (Id.; see also ECF No. 37.)

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Defense counsel states that on March 10, 2020, he received plaintiff’s revised

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interrogatories for defendants L. Cantu and J. Cantu. (Id. at 3.) The revised interrogatories

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appeared to be identical to the interrogatories defendants L. Cantu and J. Cantu had already

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responded to. (Id.) The undersigned observes that the revised interrogatories identified J. Cantu

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as Ms. Cantu and defendant L. Cantu as Mr. Cantu. (Id. at 50, 69.)
In his declaration, defense counsel states that because plaintiff’s errata sheet and revised

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interrogatories reflected that defendants L. Cantu and J. Cantu had correctly responded to

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plaintiff’s interrogatories in the first place, he did not serve plaintiff with further interrogatory

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responses. (Id. at 3.)

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On August 20, 2020, plaintiff filed a motion to extend the discovery deadline. (ECF No.

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71.) In this motion, plaintiff alleged that defendants J. Cantu and L. Cantu failed to respond to

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the revised interrogatories he served in March 2020. (Id.)

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Defendants did not file an opposition to this motion. Accordingly, on September 16,

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2020, the undersigned, unaware of all of the circumstances described above, ordered defendants

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L. Cantu and J. Cantu to serve plaintiff with responses to the revised interrogatories. (ECF No.

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77.)

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On October 21, 2020, plaintiff filed the pending motion to compel arguing that defendants

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L. Cantu and J. Cantu failed to provide him with responses to his revised interrogatories, as

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ordered by the undersigned on September 16, 2020. (ECF No. 80.) Plaintiff alleges that the
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revised interrogatories are necessary to be responded to by the appropriate defendants. (Id. at 1.)

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Plaintiff argues that simply swapping their names does not satisfy the court’s order. (Id.)

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In the motion to compel, plaintiff alleges that instead of serving him with responses to his

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revised interrogatories, on October 14, 2020, defense counsel sent plaintiff a letter stating that

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according to plaintiff’s August 20, 2020 motion and February 21, 2020 errata sheet, plaintiff

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intended for the interrogatories propounded to L. Cantu to be answered by Ms. Cantu, and the

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interrogatories propounded to J. Cantu to be answered by defendant Mr. Cantu. (Id. at 2.) The

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letter stated no revised interrogatory responses were necessary because the correct parties already

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responded to plaintiff’s interrogatories. (Id.) The letter stated that defendant L. Cantu, who is a

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woman, responded to the interrogatories addressed to defendant L. Cantu. (Id.) Defendant J.

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Cantu, who is a man, responded to interrogatories addressed to J. Cantu. (Id.)

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In his declaration submitted in support of the opposition to the pending motion to compel,

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defense counsel states that if plaintiff intended the opposite of what his errata sheet and revised

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interrogatories intended (i.e., that Ms. L. Cantu was supposed to answer the interrogatories

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originally propounded on defendant J. Cantu, and vice versa), plaintiff did not communicate this

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intention to defense counsel after he served the errata sheet and before he filed the instant motion

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to compel. (ECF No. 81-1 at 3.)

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In his reply to the pending motion, plaintiff appears to state that he did intend the opposite

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of what the errata sheet stated. Plaintiff alleges that when he drafted the original interrogatories,

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he mistakenly believed that defendant L. Cantu was a man, and defendant J. Cantu was a woman.

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(ECF No. 82.) For this reason, plaintiff argues, the original interrogatories addressed to L. Cantu

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were really intended for J. Cantu, and the original interrogatories addressed to J. Cantu were

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really intended for L. Cantu. (Id.) Plaintiff argues that defendants should be ordered to respond

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to the revised interrogatories which correct this mistake. (Id.)

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While the undersigned is sympathetic to defendants for plaintiff’s mistakes, for the

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reasons stated herein, defendants J. Cantu and L. Cantu are ordered to respond to the revised

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interrogatories.

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When plaintiff served defendants with the revised interrogatories and notice of errata,
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defendants should have communicated with plaintiff to clarify the purpose of the revised

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interrogatories, rather than ignoring them. If defendants believed that no response to the revised

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interrogatories was necessary because the correct defendants had responded to the original

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interrogatories, they should have communicated this to plaintiff. Had defendants communicated

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with plaintiff when they received the notice of errata and revised interrogatories, this matter may

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have been resolved much sooner and without court assistance.

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The undersigned acknowledges that plaintiff did not make clear until he filed the pending

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motion to compel that he served the original interrogatories on the wrong defendants. However,

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it appears defendants could have obtained this information much sooner had they communicated

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with plaintiff after receiving the notice of errata and revised interrogatories. For these reasons,

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defendants J. Cantu and L. Cantu are ordered to respond to the revised interrogatories.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to compel (ECF No. 80)

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is granted; defendants L. Cantu and J. Cantu shall serve plaintiff with responses to the revised

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interrogatories within thirty days of the date of this order; plaintiff may file a motion to compel

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regarding the responses to these interrogatories within thirty days thereafter.

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Dated: December 3, 2020

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