Gailey v. Solace Financial, LLC

Filing 28

ORDER by Magistrate Judge Howard R. Lloyd re 26 Discovery Dispute Joint Report No. 1. (hrllc2, COURT STAFF) (Filed on 2/14/2014)

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NOT FOR CITATION

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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JAMES M. GAILEY, II, individually and on
behalf of all those similarly situated,
Plaintiff,

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v.

Case No. 5:13-cv-00598 EJD (HRL)
ORDER RE DISCOVERY DISPUTE
JOINT REPORT NO. 1
[Re: Dkt. No. 26]

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SOLACE FINANCIAL, LLC,
Defendant.
This is a putative class action for alleged violation of the Fair Debt Collection Practices

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Act, 15 U.S.C. § 1692, et seq. Defendant Solace Financial, LLC (Solace) has filed Discovery

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Dispute Joint Report (DDJR) No. 1, seeking an order compelling plaintiff to respond to Solace’s

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written discovery requests and to appear for a deposition. The DDJR was filed by Solace

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unilaterally because this court is told that plaintiff failed to participate in the preparation of a joint

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report as required by the undersigned’s Standing Order re Civil Discovery Disputes (despite

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Solace’s attempts to obtain plaintiff’s input). The court has not received any response from

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plaintiff to DDJR No. 1. The matter is deemed submitted without oral argument. Civ. L.R. 7-

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1(b). Upon consideration of Solace’s arguments, its request for an order compelling the subject

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discovery is granted.

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According to Solace, on October 11, 2103, it served plaintiff with interrogatories and

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document requests, but he failed to respond at all to these requests by the 30-day deadline. Fed. R.

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Civ. P. 33(b)(2), 34(b)(2)(A). There is no indication that plaintiff ever requested an extension of

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time to serve his responses. And, on November 21, 2013, Solace says that it sent plaintiff written

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correspondence, advising that his objections to the written discovery requests were waived, and

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requesting that he serve his responses, without objections, forthwith. Solace says that no

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responses were served. Nearly two months later, plaintiff reportedly told defendant that he was

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finalizing his responses, which would be served shortly. Solace says that, despite this

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representation, plaintiff never did serve his responses to the subject interrogatories or document

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requests.
On October 21, 2013 and November 1, 2013, Solace says that it requested dates for

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plaintiff’s deposition. This court is told that plaintiff never provided any. And, defendant says

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United States District Court
Northern District of California

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that it eventually served plaintiff with a formal notice on November 4, 2013 for a November 12,

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2013 deposition. Defendant says it chose that date so that it could depose plaintiff prior to the

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parties’ then-scheduled November 19, 2013 Early Neutral Evaluation (ENE). 1 According to

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Solace, plaintiff’s counsel responded on November 4 and refused to provide dates because he did

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not believe that Solace needed plaintiff’s deposition prior to the ENE. Plaintiff reportedly never

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responded to Solace’s subsequent requests for deposition dates or to defendant’s correspondence

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advising that it would seek an order compelling plaintiff’s deposition if no dates were provided.

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Objections to written discovery must be timely served and stated with specificity. See Fed.

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R. Civ. P. 33(b)(4) (“The grounds for objecting to an interrogatory must be stated with specificity.

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Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the

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failure.”); Fed. R. Civ. P. 34(b)(2)(B) (“For each item or category, the response must either state

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that inspection and related activities will be permitted as requested or state an objection to the

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request, including the reasons.”). Plaintiff having failed to respond to defendant’s written

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discovery requests, all of his objections are waived. On the record presented, this court finds no

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good cause to excuse plaintiff’s failure to respond. See Richmark Corp. v. Timber Falling

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Solace says that the ENE had to be canceled due to plaintiff’s counsel’s travel-related issues, and
the parties are still in the process of rescheduling it.
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Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (“It is well established that a failure to object to

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discovery requests within the time required constitutes a waiver of any objection.”) (citing Davis

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v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981)). Moreover, the court finds no reason why

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plaintiff should not appear for his deposition. Indeed, Solace advises that fact discovery in this

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matter closed on January 31, 2014. Although plaintiff may disagree whether Solace needs his

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deposition before any ENE, that is no reason to refuse to cooperate in the scheduling of the

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deposition or to refuse to appear at all.
Accordingly, Solace’s request for an order compelling discovery is granted. Within 14

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days from the date of this order, plaintiff shall (1) serve his interrogatory answers and produce

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documents responsive to Solace’s requests, without objection; and (2) schedule a date for his

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United States District Court
Northern District of California

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deposition. Plaintiff is advised that this court expects him to cooperate in good faith in scheduling

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his deposition, including any pre-ENE dates on which he is available for examination.

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SO ORDERED.
Dated: February 14, 2014
______________________________________
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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5:13-cv-00598-EJD Notice has been electronically mailed to:
Andrew M. Steinheimer [e-mail], [e-mail],
[e-mail], [e-mail], [e-mail]
Brandon L. Reeves [e-mail], [e-mail],
[e-mail]

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Philip D. Stern

[e-mail]

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Robert Elmer Schroth , Jr

[e-mail]

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United States District Court
Northern District of California

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