Trustees of the Bricklayers Local No. 3 Pension Trust et al v. Huddleston

Filing 45

ORDER RE: MOTION TO COMPEL (Dkt. No. 41). Signed by Magistrate Judge Jacqueline Scott Corley on 1/6/2012. (Attachments: # 1 Certificate of Service)(ahm, COURT STAFF) (Filed on 1/6/2012)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 11 Northern District of California United States District Court 12 TRUSTEES OF THE BRICKLAYERS LOCAL NO. 3 PENSION TRUST, et. al., Plaintiffs, 13 14 15 16 Case No: 10-1708 JSC ORDER RE: MOTION TO COMPEL (Dkt. No. 41) v. KENNETH HUDDLESTON, Defendant. 17 18 Now pending before the Court is Plaintiffs’ Motion to Compel. (Dkt. No. 41.) 19 Plaintiffs state that Defendant’s discovery submissions do not conform to the Federal Rules of 20 Civil Procedure and that Defendant failed to respond or insufficiently responded to Plaintiffs’ 21 interrogatories. (Dkt. No. 41 at 5, 8.) As a remedy, Plaintiffs request that the Court issue 22 monetary sanctions, direct certain facts as established, and strike Defendant’s answer or, in the 23 alternative, compel Defendant to modify his discovery responses. (Dkt. No. 41 at 9.) 24 For the reasons set forth below, the Court declines to sanction the Defendant at this 25 time. The Court does, however, order Defendant to submit responsive materials to Plaintiffs’ 26 discovery requests that comply with the Federal Rules of Civil Procedure. Should Defendant 27 fail to do so, the Court will consider a motion to strike Defendant’s answer. 28 1 2 DISCUSSION On January 5, 2012, Defendant, who represents himself pro se, failed to appear in court 3 for a scheduled hearing on this motion. Defendant also failed to submit a written response. 4 Defendant likewise did not appear at the Case Management Conference held on November 3, 5 2011. Plaintiffs represent that they have been unable to contact Defendant since August 18, 6 2011, when the parties participated in a telephonic settlement conference. Since that time, 7 Defendant’s phone number is no longer in service, mail sent to both of Defendant’s mailing 8 addresses, including the address he provided to the Court, is returned by the U.S. Post Office, 9 and Defendant does not respond to email correspondence. strike pleadings. Fed. R. Civ. P. 37(b)(2)(A)(iii). On July 7, 2011, Defendant was ordered 12 Northern District of California When a party “fails to obey an order to provide or permit discovery,” the Court may 11 United States District Court 10 during a case management conference to contact Plaintiffs to confer regarding discovery 13 documents. (Dkt. No. 32.) Plaintiffs note that though Defendant did meet this obligation, he 14 thereafter did not produce discovery in keeping with this conference. (Dkt. No. 41 at 6.) 15 Plaintiffs argue that Defendant’s lack of compliance was an implicit failure to obey the 16 Court’s July 7, 2011 order and that Defendant’s answer should consequently be stricken. 17 Plaintiffs also contend that Defendant provided late, unsigned, and unresponsive 18 answers to Plaintiffs’ interrogatories. Plaintiffs consequently request the following facts be 19 directed as established for the purpose of this action: “(i) that all matters in Plaintiffs' First Set 20 of Requests for Admissions are deemed admitted; (ii) that Defendant signed the collective 21 bargaining agreement between the Union and Northern California Masonry Contractors Multi- 22 Employer Bargaining Association and were bound by that agreement from the period from 23 November 1, 2008 through December 31, 2010; (iii) that Defendant failed to make fringe 24 benefit contributions at the time they were due; and (iv) that Defendant is required to post a 25 cash bond in the amount of $25,000.” (Dkt. No. 41 at 7.) 26 Since Defendant adhered to the letter if not the spirit of the Court’s July 7, 2011 order 27 by calling and conferring with Plaintiffs, striking Defendant’s answer is premature at this 28 juncture. Likewise, as Defendant provided some answer to Plaintiffs’ interrogatories—albeit 2 1 late, unresponsive, and not in compliance with the Federal Rules of Civil Procedure—the 2 Court will not direct the factual establishments requested by Plaintiffs at this time. For the 3 same reasons, the Court will not award monetary sanctions to Plaintiffs for their costs and 4 attorneys’ fees in bringing this motion. 5 Instead, the Court will provide Defendant with one final opportunity to supplement 6 previously submitted discovery and provide pertinent and signed responses to all of Plaintiffs’ 7 discovery requests as required by the Federal Rules of Civil Procedure. Further, this 8 discovery shall be served on Plaintiffs via United States mail by February 3, 2012. Defendant 9 is warned that if he fails to comply with this Order, his answer may be stricken and he can be 10 found in default. 11 Northern District of California United States District Court 12 IT IS SO ORDERED. 13 14 Dated: January 6, 2012 ______________________________________ JACQUELINE SCOTT CORLEY United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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