Millare v. Stratton et al

Filing 69

ORDER denying without prejudice Plaintiff's 50 Motion to Compel a More Definite Answer. If, after making a good faith effort to meet and confer regarding specific challenges Plaintiff asserts against Defendants' objections, the parties reach an impasse, the parties may file a Joint Motion for Determination of Discovery Dispute by 10/18/2017. Signed by Magistrate Judge Mitchell D. Dembin on 9/15/2017. (All non-registered users served via U.S. Mail Service) (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MORIANO MILLARE,

Case No.: 16CV1633-BAS-MDD
Plaintiff,

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v.

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G. STRATTON, et al.,

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Defendant.

ORDER DENYING PLAINTIFF'S
MOTION TO COMPEL
[ECF No. 50]

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Before the Court is Plaintiff’s Motion to Compel a More Definite

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Answer. (ECF No. 50). Plaintiff’ moves to compel responses to

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interrogatories and further documents from Defendant G. Stratton. (Id.).

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The dispute involves a confidential memorandum in Plaintiff’s central file

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and documents relating to Plaintiff’s work placement. (Id. at 14-27).

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LEGAL STANDARD
A party may obtain discovery regarding any nonprivileged information

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that is relevant to any claim or defense in his case. Fed. R. Civ. P. 26(b)(1).

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Once the party seeking discovery has established that his request meets this

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broadly-construed relevancy requirement, “the party opposing discovery has

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the burden of showing that the discovery should be prohibited, and the
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burden of clarifying, explaining or supporting its objections.” Bryant v.

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Ochoa, No. 07-cv-200, 2009 WL 1390794, at *1 (S.D. Cal. May 14, 2009).

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When a party believes the responses to his requests are incomplete, or

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contain unfounded objections, he may move the court for an order compelling

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disclosure. Fed. R. Civ. P. 37.

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DISCUSSION

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As a threshold issue, in a proper motion seeking the court to compel

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further discovery production, the movant must show that he conferred, or

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made a good faith effort to confer, with the party opposing disclosure before

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seeking court intervention. Fed R. Civ. P. 37(a)(1). Additionally, a motion to

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compel “must include a certification” that the movant has attempted to meet

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and confer.” Id. Failure to meet and confer in good faith is grounds for

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denial of the motion to compel. Robinson v. Potter, 453 F.3d 990, 995 (8th

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Cir. 2006); Rogers v. Giurbino, 288 F.R.D. 469, 477 (S.D. Cal. 2012)

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(Scheinuck v. Sepulveda, No. C 09-0727 WHA (PR), 2010 WL 5174340, at *1-

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2 (N.D. Cal. Dec, 15, 2010); see Shaw v. Cnty. Of San Diego, No. 06-2680-

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IEG(PQR), 2008 U.S. Dist. LEXIS 80508, at 3-4, 2008 WL 9411414 (S.D. Cal.

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Oct. 9, 2001) (denying plaintiff’s motion to compel for failing to attempt to

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meet and confer.).

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The requirement to meet and confer applies to pro se litigants. Madsen

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v. Risenhoover, No. C 09-5457 SBA (PR), 2012 U.S. Dist. LEXIS 90810, *8-9

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(N.D. Cal. June 28, 2012) (finding that the meet and confer requirement

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applies to incarcerated individuals); Walker v. Ryan, No. CV-1—1408-PHX-

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JWS (LOA), 2012 U.S. Dist. LEXIS 63606, at *5-6 (D. Ariz. May 7, 2012)

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(denying motion to compel where unrepresented party did not include a

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certification of attempts to meet and confer); see also Jourdan v. Jabe, 951

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F.2d 108, 109 (6th Cir. 1991) (discussing that although courts should liberally
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construe pro se plaintiffs’ pleadings and legal arguments, this liberality does

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not apply to compliance with straightforward procedural requirements).

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Here, Defendants assert that Plaintiff did not meet and confer before

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filing his motion. (ECF No. 54 at 9). A declaration provided by Defendants’

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attorney indicates that Plaintiff made no effort to meet and confer with

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respect to the supposedly insufficient discovery responses “either by letter,

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phone, or in person.” (ECF No. 54-2 at ¶7). Plaintiff’s motion cites Rule 37’s

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requirement to include a certification that he engaged in or attempted to

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engage in the meet and confer process before seeking court intervention.

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(ECF No. 50 at 12). Plaintiff’s motion does not contain the required

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certification. Further, Plaintiff argues that he does not have access to collect

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call telephones during business hours because of his work assignment. (ECF

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No. 62 at 1).

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As noted above, Plaintiff’s status as an incarcerated pro se litigant does

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not absolve him of the requirement to engage in the meet and confer process.

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The Court finds that Plaintiff has not satisfied this requirement and

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therefore his Motion to Compel is premature. Accordingly, the parties are

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directed to meet and confer by telephone by October 4, 2017, to address

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Defendants’ objections and Plaintiff’s reasons to compel further production.

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Defendants are directed to initiate the call. If after a good faith effort to meet

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and confer, the parties are unable to resolve their disputes, they may file a

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joint motion for determination of a discovery dispute consistent with this

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Court’s Chambers Rules.

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CONCLUSION

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For the aforementioned reasons, Plaintiff’s Motion to Compel is

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DENIED WITHOUT PREJUDICE. If, after making a good faith effort to

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meet and confer regarding specific challenges Plaintiff asserts against
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Defendants’ objections, the parties reach an impasse, the parties may file a

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Joint Motion for Determination of Discovery dispute on or before October

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18, 2017.

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IT IS SO ORDERED.

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Dated: September 15, 2017

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