Sunnergren v. Cate

Filing 29

ORDER by Judge Lucy H. Koh granting 26 Motion to Compel; granting 26 Motion for Extension of Time to File (Attachments: # 1 Certificate/Proof of Service) (mpb, COURT STAFF) (Filed on 1/3/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MARK E. SUNNERGREN,

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Plaintiff,
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v.
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MATTHEW CATE, et al.,
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Defendants.
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_________________________________ )

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ORDER GRANTING DEFENDANTS’
MOTION TO COMPEL; GRANTING
DEFENDANTS’ MOTION FOR AN
EXTENSION OF TIME
(Docket No. 26)

Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42
U.S.C. § 1983. The Court found that, liberally construed, Plaintiff stated a cognizable claim of
deliberate indifference to his serious medical needs. Defendants have filed a motion to compel
Plaintiff to respond to their interrogatories. Plaintiff has filed an opposition, and Defendants
have filed a reply. Defendants have also filed a motion for an extension of time in which to file
their dispositive motion. For the reasons stated below, Defendants’ motions are GRANTED.

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No. C 12-979 LHK (PR)

DISCUSSION
A.

Motion to Compel
On September 11, 2012, Defendants sent a set of 7 interrogatories -- 5 of which contained

12 subparts -- to Plaintiff. (MTC, Ex. A.) After receiving no response from Plaintiff, on
October 16, 2012, Defendants requested that Plaintiff respond to the interrogatories or face a
motion to compel. (Decl. Grigg at ¶ 3.) On October 25, 2012, Plaintiff responded that he needed
Order Granting Defendants’ Motion to Compel; Granting Defendants’ Motion for Extension of Time
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more time, and that his affidavit filed in support of his motion for injunctive relief provided

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“nearly all” the information Defendants sought. (Id. at ¶ 4.) On October 31, 2012, Defendants

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again requested that Plaintiff provide answers to the interrogatories. (Id. at ¶ 6.) On November

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13, 2012, Plaintiff responded that answering the interrogatories would be too burdensome, and

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that there were documents that provided the information Defendants sought. (Id.; Opp., Ex. B.)

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Defendants filed the underlying motion to compel on November 26, 2012.

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The federal rules allow liberal discovery. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34

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(1984). The party resisting discovery has the burden of establishing lack of relevance or undue

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burden. Oleson v. Kmart Corp., 175 F.R.D. 560, 565 (D. Kan. 1997). A recitation that the

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discovery request is “overly broad, burdensome, oppressive and irrelevant” is not adequate to

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voice a successful objection. Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982). The

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party resisting discovery must instead “‘show specifically how . . . each interrogatory [or request

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for production] is not relevant or how each question is overly broad, burdensome or

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oppressive.’” Id.

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Plaintiff asserts that Defendants’ interrogatories exceed the 25 interrogatory limit set by

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Federal Rule of Civil Procedure 33. Defendants respond that the subparts should not be counted

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as separate interrogatories. Unless otherwise stipulated or ordered by the Court, the Federal

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Rules state that a party may serve no more than 25 written interrogatories, including all discrete

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subparts. A single question asking for several bits of information relating to the same topic

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counts as one interrogatory “if they are logically or factually subsumed within and necessarily

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related to the primary question.” See Safeco of America v. Rawstrom, 181 F.R.D. 441, 445

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(C.D.Cal. 1998); Fed. R. Civ. P. 33(a)(1). Here, a review of Defendants’ interrogatories reveals

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that Numbers 1-5 each contain 12 subparts. Each of the 5 separately numbered interrogatories

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relate to Plaintiff’s deliberate indifference claim against each of the 5 Defendants in this action.

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The subparts relate to the same topic, and are necessarily related to the question of each

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Defendant’s actions that would support his or her role in Plaintiff’s claim. Thus, the Court

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agrees that Defendants’ interrogatories do not exceed the 25 interrogatory limit.

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Plaintiff also argues that his previous pleadings contain the answers Defendants seek.
Plaintiff must make a good faith effort to provide the facts which he alleges support his claim
Order Granting Defendants’ Motion to Compel; Granting Defendants’ Motion for Extension of Time
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where requested by Defendants’ interrogatories. Plaintiff is advised that simply responding to

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the entire set of interrogatories by stating, “see complaint” or “see affidavit” is not sufficient.

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See Hickman v. Taylor, 329 U.S. 495, 507 (1947) (“Mutual knowledge of all the relevant facts

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gathered by both parties is essential to proper litigation. To that end, either party may compel

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the other to disgorge whatever facts he has in his possession.”). Thus, the Court will GRANT

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Defendants’ motion to compel and order Plaintiff to provide actual responses to the

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interrogatories propounded on Plaintiff. If Plaintiff is not in possession of the requested

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information, he should so state in his response to that particular interrogatory.
The Court reminds Plaintiff that “[p]ro se litigants must follow the same rules of

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procedure that govern other litigants.” Briere v. Chertoff, No. 06-56740, 271 Fed.Appx. 682,

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683 (9th Cir. 2008) (unpublished memorandum disposition) (quoting King v. Atiyeh, 814 F.2d

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565, 567 (9th Cir. 1987)). Plaintiff elected to bring the instant action, and he is bound by the

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rules governing litigation. The Court therefore stresses to Plaintiff that he must comply with this

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Order and respond to the interrogatories within 28 days of the filing date of this Order. Plaintiff

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is warned that failure to comply with this Order in good faith may result in the imposition of

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monetary sanctions, evidentiary sanctions, and/or the dismissal of his case. See Fed. R. Civ. P.

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11, 37.

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On the other hand, discovery practice is not a contest in which counsel is permitted to

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take advantage of a pro se litigant. The efficiency of pursuing written discovery in an action

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involving a pro se litigant may be questionable. If, as the case progresses, the Court determines

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that information being sought by Defendants is more efficiently obtained through the taking of

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Plaintiff’s deposition rather than through voluminous and detailed written discovery, the Court

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will exercise its authority to manage discovery by denying future motions to compel responses to

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written discovery, and instead, directing the taking of Plaintiff’s deposition, unless Defendants

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can demonstrate that such an alternative is inadequate.

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B.

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Motion for Extension of Time
Defendants request an extension of time in which to file a dispositive motion, based on

their inability to obtain discovery information. Defendants’ motion is GRANTED. Defendants
shall file a dispositive motion, or notice that no such motion is warranted, no later than March
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31, 2013. Plaintiff shall file any opposition twenty-eight days after Defendants file their

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motion. Defendants shall file a reply within fourteen days thereafter.

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IT IS SO ORDERED.
DATED:

1/2/13
LUCY H. KOH
United States District Judge

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Order Granting Defendants’ Motion to Compel; Granting Defendants’ Motion for Extension of Time
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