Mir v. Medical Board of California et al

Filing 170

ORDER Denying Plaintiff's 154 Ex Parte Application to Compel Defendant Levine to Answer Plaintiff's Request for Admissions. Signed by Magistrate Judge David H. Bartick on 6/22/16. (All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JEHAN ZEB MIR, M.D.,
Plaintiff,

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KIMBERLY KIRCHMEYER, et al.

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Defendants.

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12cv2340-GPC (DHB)

ORDER REGARDING
PLAINTIFF’S EX PARTE
APPLICATION TO COMPEL
DEFENDANT LEVINE TO
ANSWER PLAINTIFF’S
REQUEST FOR ADMISSIONS

v.

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Civil No.

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[ECF No. 154]

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On April 22, 2016, Plaintiff Jehan Zeb Mir, M.D. (“Plaintiff”) filed an ex parte

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motion requesting the Court compel Defendant Sharon Levine (“Levine”) to answer

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Plaintiff’s first set of request for admissions and request to admit genuineness of

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documents. (ECF No. 154.) Kirchmeyer filed an opposition to Plaintiff’s ex parte motion

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on May 13, 2016. (ECF No. 160.) For the reasons set forth below, Plaintiff’s motion is

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DENIED.

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I. BACKGROUND

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Plaintiff initiated this action on September 25, 2012, alleging Defendants wrongfully

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took disciplinary action against Plaintiff’s physician’s and surgeon’s certificate. (ECF No.

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1.) On October 19, 2015, Plaintiff served a First Set of Request for Admissions on Levine.
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(ECF No. 154 at 32-53.) On December 18, 2015, Levine responded. (ECF No. 154 at 55-

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75.)

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Subsequently, on April 22, 2016, Plaintiff filed the instant ex parte motion

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requesting the Court to compel Levine to admit each of the 167 Request for Admissions he

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propounded.1 (ECF No. 154.)

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II. ANALYSIS
A.

Failure to Comply with the Court’s Procedures for Discovery Disputes

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Plaintiff has failed to comply with this Court’s procedures for filing discovery

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motions. First, Plaintiff has not complied with Section IV.C. of the undersigned Magistrate

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Judge’s Civil Chambers Rules which requires the filing of a Joint Motion for Determination

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of Discovery Dispute.2 Second, Plaintiff has not shown he adequately met and conferred

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The Court finds Plaintiff has only moved to compel responses to his Request for
Admissions and not any Interrogatories that may have been served on Levine. In Plaintiff’s
motion, the opening paragraph states Plaintiff served Request for Admissions on Levine,
and that “[o]n December 18, 2015, Defendant served Responses to Plaintiff’s Request for
Admissions and Request to Admit Genuineness of Documents.” (ECF No. 154 at 2.) Then,
in the next sentence, Plaintiff wrote “Defendant Levine did not answer any of the
interrogatories, instead made same boiler-plate frivolous objections to each and every
request for Interrogatory as a delaying and harassing tactic.” (Id.) Thereafter, Plaintiff
resumed referring to Requests for Admissions. (Id.) Plaintiff does not mention
Interrogatories anywhere else in his motion, and Plaintiff has not attached any
Interrogatories to the motion for the Court’s consideration. Moreover, Plaintiff only
requests the Court compel answers to his Request for Admissions. (See id. at 29 (“The
Defendant should be ordered to answer Plaintiff’s request to admit the genuineness of the
documents and request to admit each of the 155 requests for admissions.”).) It appears
Plaintiff erroneously used the term “Interrogatories” in his opening paragraph to refer to
his Requests for Admissions. Accordingly, the sufficiency of Levine’s responses to
Plaintiff’s Interrogatories are not properly before the Court. Therefore, the Court will
disregard Levine’s arguments regarding the Interrogatories.

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The Chambers Rules are available at:
https://www.casd.uscourts.gov/Rules/Lists/Rules/Attachments/17/Bartick%20Civil%20C
hambers%20Rules.pdf
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with Levine prior to filing the instant motion. The duty to meet and confer prior to bringing

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a discovery motion is required not only by this Court’s Chambers Rules and the Southern

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District’s Civil Local Rules, but also by the Federal Rules of Civil Procedure. See Fed. R.

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Civ. P. 37(a); Civ. L.R. 26.1(a). Plaintiff also failed to comply with the Court’s rules

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governing ex parte applications. See Civ. L. R. 83.3(h)(2).

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Further, Plaintiff’s motion is untimely. Pursuant to this Court’s Chambers Rules, all

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discovery motions must be filed “within forty-five (45) days of the date upon which the

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event giving rise to the dispute occurred.” Judge Bartick’s Civil Chambers Rules IV(C).

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For written discovery, the event giving rise to the dispute is the date of the service of the

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initial response. Id. Here, the event giving rise to the dispute was the date Levine

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responded to Plaintiff’s Request for Admissions, which was December 18, 2015. (ECF

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No. 154 at 55-75.) Therefore, the deadline for this discovery motion to be filed was

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February 1, 2016. Plaintiff’s motion to compel was filed nearly three months late, and

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Plaintiff has not provided any justification for his untimeliness.

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Previously, Plaintiff was warned that all discovery disputes must comply with the

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Court’s rules. (See ECF No. 146 at 2 (advising the parties that “all discovery disputes must

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be filed in accordance with the time limits, and filing procedures set forth in Judge Bartick’s

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Civil Chambers Rules”).) It would be well within the Court’s discretion to reject Plaintiff’s

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motion for these reasons. However, in the interest of justice, the Court will address the

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merits of the parties’ dispute.

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discovery motion will not be considered unless the Court’s rules and procedures are

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complied with.

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Nevertheless, Plaintiff is advised that any future

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B.

Plaintiff’s Motion to Compel Admissions
Requests for Admissions (“RFAs”) are governed by Federal Rule of Civil Procedure

36, which provides:
A party may serve on any other party a written request to admit, for the
purposes of the pending action only, the truth of any matters within the scope
of Rule 26(b)(1) relating to:
(A) facts, the application of law to fact, or opinions about either; and
(B) the genuineness of any described document.
Fed.R.Civ.P. 26(a)(1).
Rule 36 does not limit the number of RFAs that may be propounded, however, the
Court’s Local Rules do. Civil Local Rule 36.1 states:
No party will serve on any other party requests for admission which,
including subparagraphs, number more than twenty-five requests for
admission without leave of court. Any party desiring to serve additional
requests for admission must submit to the court a written memorandum
setting forth the proposed additional requests for admission and the reasons
establishing good cause for their use.

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Civ.L.Rule 36.1(a) (emphasis added). See also Fed.R.Civ.P 26(b)(2)(A) (authorizing

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district courts to limit the number of requests under Rule 36 by local rule.)

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The party answering an RFA must admit, deny, or state in detail why the party cannot

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truthfully admit or deny the matter. Fed.R.Civ.P 36(a)(4). Qualified answers are proper if

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the responding party specifies the part admitted and qualifies or denies the rest. Id. The

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responding party may also assert lack of sufficient information or knowledge as a reason

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for failing to admit or deny the matter, as long as the party states that “it has made

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reasonable inquiry and that the information it knows or can readily obtain is insufficient to

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enable it to admit or deny.” Id.

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1.

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In Request for Admissions Nos. A.1 through A.12, Plaintiff requested that Levine

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authenticate certain documents. Levine responded to the RFAs by either making qualified

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admissions (A.3-A.6, A.8-A.9, A.12) or indicating she had insufficient information to

RFA Nos. A.1 - A.12

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enable her to admit or deny the request (A.1-A.2, A.7, A.10-A.11). The Court finds

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Levine’s responses are sufficient. Therefore, the Court will not compel further responses.

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2.

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In Request for Admissions Nos. B.1-B.13, Plaintiff requested Levine admit various

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factual matters. Levine again responded appropriately by denying two requests (B.2 and

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B.4.), making a qualified admission as to one request (B.3), and by indicating she lacked

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sufficient information to admit or deny the remaining requests (B.1, B.5-B.13.). In light

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of Levine’s verified discovery responses, the Court will not compel further responses.

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3.

RFA Nos. B.1 – B.13

RFA Nos. B.14 – B.155

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Plaintiff propounded a total of 167 RFAs. Levine answered the first 25, and objected

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the remaining 142 on the basis that Plaintiff did not have leave of court to serve more than

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25 requests under Civil Local Rule 36.1. The Court finds Levine acted reasonably in only

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responding to the first 25 requests. Under the Local Rules, the limit on RFAs is 25.

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Civ.L.R. 36.1. Plaintiff never sought leave to go beyond this limit, and the Court does not

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find good cause to permit Plaintiff to propound an additional 142 RFAs. Accordingly, the

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Court will not order Levine to further respond to RFA Nos. B.14 through B.155.

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III. CONCLUSION

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For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s Ex Parte

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Application to Compel Defendant Sharon Levine to Answer Plaintiff’s Request for

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Admissions is DENIED.

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IT IS SO ORDERED.
Dated: June 22, 2016
_________________________
DAVID H. BARTICK
United States Magistrate Judge

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