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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 MARK E. SUNNERGREN, ) ) Plaintiff, ) ) ) v. ) ) ) MATTHEW CATE, et al., ) ) Defendants. ) _________________________________ ) 17 18 19 20 21 22 25 26 27 28 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. 23 24 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 G:\PRO-SE\SJ.LHK\CR.12\Sunnergren979mtc.wpd 1 more time, and that his affidavit filed in support of his motion for injunctive relief provided 2 “nearly all” the information Defendants sought. (Id. at ¶ 4.) On October 31, 2012, Defendants 3 again requested that Plaintiff provide answers to the interrogatories. (Id. at ¶ 6.) On November 4 13, 2012, Plaintiff responded that answering the interrogatories would be too burdensome, and 5 that there were documents that provided the information Defendants sought. (Id.; Opp., Ex. B.) 6 Defendants filed the underlying motion to compel on November 26, 2012. 7 The federal rules allow liberal discovery. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 8 (1984). The party resisting discovery has the burden of establishing lack of relevance or undue 9 burden. Oleson v. Kmart Corp., 175 F.R.D. 560, 565 (D. Kan. 1997). A recitation that the 10 discovery request is “overly broad, burdensome, oppressive and irrelevant” is not adequate to 11 voice a successful objection. Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982). The 12 party resisting discovery must instead “‘show specifically how . . . each interrogatory [or request 13 for production] is not relevant or how each question is overly broad, burdensome or 14 oppressive.’” Id. 15 Plaintiff asserts that Defendants’ interrogatories exceed the 25 interrogatory limit set by 16 Federal Rule of Civil Procedure 33. Defendants respond that the subparts should not be counted 17 as separate interrogatories. Unless otherwise stipulated or ordered by the Court, the Federal 18 Rules state that a party may serve no more than 25 written interrogatories, including all discrete 19 subparts. A single question asking for several bits of information relating to the same topic 20 counts as one interrogatory “if they are logically or factually subsumed within and necessarily 21 related to the primary question.” See Safeco of America v. Rawstrom, 181 F.R.D. 441, 445 22 (C.D.Cal. 1998); Fed. R. Civ. P. 33(a)(1). Here, a review of Defendants’ interrogatories reveals 23 that Numbers 1-5 each contain 12 subparts. Each of the 5 separately numbered interrogatories 24 relate to Plaintiff’s deliberate indifference claim against each of the 5 Defendants in this action. 25 The subparts relate to the same topic, and are necessarily related to the question of each 26 Defendant’s actions that would support his or her role in Plaintiff’s claim. Thus, the Court 27 agrees that Defendants’ interrogatories do not exceed the 25 interrogatory limit. 28 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 2 G:\PRO-SE\SJ.LHK\CR.12\Sunnergren979mtc.wpd 1 where requested by Defendants’ interrogatories. Plaintiff is advised that simply responding to 2 the entire set of interrogatories by stating, “see complaint” or “see affidavit” is not sufficient. 3 See Hickman v. Taylor, 329 U.S. 495, 507 (1947) (“Mutual knowledge of all the relevant facts 4 gathered by both parties is essential to proper litigation. To that end, either party may compel 5 the other to disgorge whatever facts he has in his possession.”). Thus, the Court will GRANT 6 Defendants’ motion to compel and order Plaintiff to provide actual responses to the 7 interrogatories propounded on Plaintiff. If Plaintiff is not in possession of the requested 8 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 9 10 procedure that govern other litigants.” Briere v. Chertoff, No. 06-56740, 271 Fed.Appx. 682, 11 683 (9th Cir. 2008) (unpublished memorandum disposition) (quoting King v. Atiyeh, 814 F.2d 12 565, 567 (9th Cir. 1987)). Plaintiff elected to bring the instant action, and he is bound by the 13 rules governing litigation. The Court therefore stresses to Plaintiff that he must comply with this 14 Order and respond to the interrogatories within 28 days of the filing date of this Order. Plaintiff 15 is warned that failure to comply with this Order in good faith may result in the imposition of 16 monetary sanctions, evidentiary sanctions, and/or the dismissal of his case. See Fed. R. Civ. P. 17 11, 37. 18 On the other hand, discovery practice is not a contest in which counsel is permitted to 19 take advantage of a pro se litigant. The efficiency of pursuing written discovery in an action 20 involving a pro se litigant may be questionable. If, as the case progresses, the Court determines 21 that information being sought by Defendants is more efficiently obtained through the taking of 22 Plaintiff’s deposition rather than through voluminous and detailed written discovery, the Court 23 will exercise its authority to manage discovery by denying future motions to compel responses to 24 written discovery, and instead, directing the taking of Plaintiff’s deposition, unless Defendants 25 can demonstrate that such an alternative is inadequate. 26 B. 27 28 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 Order Granting Defendants’ Motion to Compel; Granting Defendants’ Motion for Extension of Time 3 G:\PRO-SE\SJ.LHK\CR.12\Sunnergren979mtc.wpd 1 31, 2013. Plaintiff shall file any opposition twenty-eight days after Defendants file their 2 motion. Defendants shall file a reply within fourteen days thereafter. 3 4 5 IT IS SO ORDERED. DATED: 1/2/13 LUCY H. KOH United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Granting Defendants’ Motion to Compel; Granting Defendants’ Motion for Extension of Time 4 G:\PRO-SE\SJ.LHK\CR.12\Sunnergren979mtc.wpd

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