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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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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Northern District of California

United States District Court

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TRUSTEES OF THE BRICKLAYERS
LOCAL NO. 3 PENSION TRUST, et. al.,
Plaintiffs,

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Case No: 10-1708 JSC
ORDER RE: MOTION TO COMPEL
(Dkt. No. 41)

v.
KENNETH HUDDLESTON,
Defendant.

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Now pending before the Court is Plaintiffs’ Motion to Compel. (Dkt. No. 41.)

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Plaintiffs state that Defendant’s discovery submissions do not conform to the Federal Rules of

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Civil Procedure and that Defendant failed to respond or insufficiently responded to Plaintiffs’

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interrogatories. (Dkt. No. 41 at 5, 8.) As a remedy, Plaintiffs request that the Court issue

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monetary sanctions, direct certain facts as established, and strike Defendant’s answer or, in the

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alternative, compel Defendant to modify his discovery responses. (Dkt. No. 41 at 9.)

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For the reasons set forth below, the Court declines to sanction the Defendant at this

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time. The Court does, however, order Defendant to submit responsive materials to Plaintiffs’

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discovery requests that comply with the Federal Rules of Civil Procedure. Should Defendant

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fail to do so, the Court will consider a motion to strike Defendant’s answer.

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DISCUSSION
On January 5, 2012, Defendant, who represents himself pro se, failed to appear in court

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for a scheduled hearing on this motion. Defendant also failed to submit a written response.

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Defendant likewise did not appear at the Case Management Conference held on November 3,

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2011. Plaintiffs represent that they have been unable to contact Defendant since August 18,

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2011, when the parties participated in a telephonic settlement conference. Since that time,

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Defendant’s phone number is no longer in service, mail sent to both of Defendant’s mailing

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addresses, including the address he provided to the Court, is returned by the U.S. Post Office,

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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

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Northern District of California

When a party “fails to obey an order to provide or permit discovery,” the Court may

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United States District Court

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during a case management conference to contact Plaintiffs to confer regarding discovery

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documents. (Dkt. No. 32.) Plaintiffs note that though Defendant did meet this obligation, he

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thereafter did not produce discovery in keeping with this conference. (Dkt. No. 41 at 6.)

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Plaintiffs argue that Defendant’s lack of compliance was an implicit failure to obey the

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Court’s July 7, 2011 order and that Defendant’s answer should consequently be stricken.

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Plaintiffs also contend that Defendant provided late, unsigned, and unresponsive

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answers to Plaintiffs’ interrogatories. Plaintiffs consequently request the following facts be

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directed as established for the purpose of this action: “(i) that all matters in Plaintiffs' First Set

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of Requests for Admissions are deemed admitted; (ii) that Defendant signed the collective

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bargaining agreement between the Union and Northern California Masonry Contractors Multi-

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Employer Bargaining Association and were bound by that agreement from the period from

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November 1, 2008 through December 31, 2010; (iii) that Defendant failed to make fringe

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benefit contributions at the time they were due; and (iv) that Defendant is required to post a

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cash bond in the amount of $25,000.” (Dkt. No. 41 at 7.)

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Since Defendant adhered to the letter if not the spirit of the Court’s July 7, 2011 order

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by calling and conferring with Plaintiffs, striking Defendant’s answer is premature at this

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juncture. Likewise, as Defendant provided some answer to Plaintiffs’ interrogatories—albeit

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late, unresponsive, and not in compliance with the Federal Rules of Civil Procedure—the

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Court will not direct the factual establishments requested by Plaintiffs at this time. For the

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same reasons, the Court will not award monetary sanctions to Plaintiffs for their costs and

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attorneys’ fees in bringing this motion.

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Instead, the Court will provide Defendant with one final opportunity to supplement

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previously submitted discovery and provide pertinent and signed responses to all of Plaintiffs’

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discovery requests as required by the Federal Rules of Civil Procedure. Further, this

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discovery shall be served on Plaintiffs via United States mail by February 3, 2012. Defendant

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is warned that if he fails to comply with this Order, his answer may be stricken and he can be

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found in default.

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Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: January 6, 2012

______________________________________

JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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