Nshimba v. Lowe's Home Improvement Warehouse, Inc. et al

Filing 39

ORDER by Judge Nandor J. Vadas Granting 23 & 30 Defendant's Motion to Compel. The Court orders Plaintiff to supplement his responses, verify his responses, and produce responsive documents within twenty-one (21) days of the filing of this order. (njvlc2, COURT STAFF) (Filed on 6/20/2011)

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

United States District Court
For the Northern District of California

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No. CV 10-2982 RS (NJV)

LINO NSHIMBA,
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ORDER GRANTING DEFENDANT’S
MOTIONS TO COMPEL

Plaintiff,
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v.

(Docket Nos. 23 & 30)

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LOWE’S HOME IMPROVEMENT
WAREHOUSE, INC., et al.,
Defendants.

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On May 6, 2011, Defendant Lowe’s Home Improvement Warehouse, Inc. filed a motion to

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compel Plaintiff Lino Nshimba to respond to Defendant’s First Set of Interrogatories and First

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Request for Production of Documents, verify his interrogatory responses, and to produce responsive

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documents. Doc. No. 23. The district court referred Defendant’s motion to compel and all future

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discovery disputes to this Court for determination. Doc. No. 26. Plaintiff did not file an opposition

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to Defendant’s first motion to compel.

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On May 19, 2011, the Court ordered counsel for all parties to engage in an in-person meet

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and confer by June 3, 2011 regarding the pending discovery dispute. Doc. No. 29. On May 24,

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2011, Defendant filed a second motion to compel the same responses as its first motion to compel.

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Doc. No. 30. Defendant indicates that the parties discussed the discovery dispute in detail on May

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12, 2011 before and after a hearing in this action before Judge Seeborg and that Plaintiff agreed to
supplement his responses. Doc. Nos. 30, 31.

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On June 2, 2011, counsel for Defendant informed the Court that the parties were unable to

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engage in an in-person meet and confer by June 3, 2011, due in part to the unavailability of

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Plaintiff’s counsel through June 15, 2011. On June 3, 2011, the Court ordered counsel for all parties

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to engage in the previously ordered in-person meet and confer regarding the pending discovery

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dispute by close of business June 20, 2011, and to file a single joint letter regarding the status of the

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in-person meet and confer by close of business June 23, 2011. Doc. No. 34.

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On June 14, 2011, Defendant filed a notice of Plaintiff’s non-opposition to its motion to

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compel. Doc. No. 35. In its notice, Defendant indicates that Plaintiff previously agreed to

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supplement his responses but has not yet done so. Defendant also indicates that Plaintiff has not

United States District Court
For the Northern District of California

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responded to its attempts to meet and confer per this Court’s orders.

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Plaintiff’s response was due June 7, 2011, and as of June 15, 2011, Plaintiff had not filed his

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response to Defendant’s second motion to compel. The Court therefore ordered Plaintiff to file his

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opposition or statement of non-opposition to Defendant’s motions to compel by close of business

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June 17, 2011. Doc. No. 36. On June 17th, Plaintiff filed his response. Doc. No. 37. The Court

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vacated the June 28, 2011 hearing and took Defendant’s motions for submission on the papers. Doc.

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No. 38.

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Plaintiff’s response consists of two sentences: “The court and opposing counsel were made

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ware [sic] that counsel for plaintiff was out of town and unavailable during the period of the filing

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of defendant’s motion to compel. Plaintiff has provided all evidentiary discovery propounded by

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defense counsel prior to May 20, 2011.” Doc. No. 37. Plaintiff failed to provide any detail

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regarding his discovery responses, failed to submit a declaration in support of his response, and also

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failed to respond to any of Defendant’s arguments.

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Even more concerning, Plaintiff’s statement is not accurate. After attempting to meet and

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confer with Plaintiff, Defendant filed its first motion to compel on May 6, 2011, and Plaintiff

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appeared at a hearing in this action before Judge Seeborg on May 12, 2011. Doc. Nos. 23, 27;

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Declaration of Christiane A. Roussell In Support of Defendant’s First Motion to Compel, ¶ 9 (Doc.

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No. 24). The parties discussed Defendant’s motion to compel at this May 12th hearing. Roussell

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Decl. In Support of Defendant’s Second Motion to Compel, ¶ 11 (Doc. No. 31). Therefore, Plaintiff
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was not unavailable during the filing of Defendant’s motion to compel. Defendant filed its second

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motion to compel, substantially identical to its first motion to compel, on May 24, 2011. While

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Plaintiff’s counsel may have been unavailable the first half of June 2011, he had notice and

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knowledge of Defendant’s first motion to compel filed on May 6, 2011 and counsel failed to respond

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to this motion to compel.

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In addition, Plaintiff’s responses to Defendant’s First Set of Interrogatories and First Request

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for Production of Documents were incomplete and for some requests, missing. Roussell Decl. In

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Support of Defendant’s Second Motion to Compel, Exs. E & F (responses handwritten on

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Defendant’s discovery requests).

United States District Court
For the Northern District of California

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Therefore, the Court GRANTS Defendant’s motions to compel and orders Plaintiff to

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supplement his responses to Defendant’s First Set of Interrogatories and First Request for

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Production of Documents, verify his interrogatory responses, and to produce responsive documents

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within twenty-one (21) days of the filing of this order.

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IT IS SO ORDERED.

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Dated: June 20, 2011
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NANDOR J. VADAS
United States Magistrate Judge

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