McCullock v. Brown et al

Filing 41

ORDER DENYING AS PREMATURE PLAINTIFFS MOTION TO COMPEL re 38 Motion to Compel. Signed by Magistrate Judge Jill L. Burkhardt on 4/3/2019. (All non-registered users served via U.S. Mail Service)(sjm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Robert McCullock,

Case No.: 18-cv-00548-WQH-JLB
Plaintiff,

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v.

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ORDER DENYING AS
PREMATURE PLAINTIFF’S
MOTION TO COMPEL

Robert Brown, et al.,
Defendants.

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[ECF No. 38]

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Before the Court is Plaintiff Robert McCullock’s Motion to Compel. (ECF No. 38.)

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Plaintiff requests that the Court issue an order compelling Defendants “to produce for

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inspection and copying the documents requested on [January 18, 2019] in compliance with

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Federal Rule of Civil Procedure [] 26.” (Id. at 1.) Although Plaintiff requests an order

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compelling Defendants to produce documents, it appears that Plaintiff is actually seeking

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responses to his second set of interrogatories (“Interrogatories”), for Plaintiff attached his

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Interrogatories to his motion. (Id. at 3–5.) Also attached to Plaintiff’s motion is the Proof

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of Service by Mail corresponding to these Interrogatories, which is dated January 18, 2019.

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(Id. at 2.)

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On March 26, 2018, Defendants filed a response in opposition to Plaintiff’s Motion

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to Compel. (ECF No. 39.) Defendants first argue that Plaintiff’s motion should be denied
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because it is premature. (Id. at 2.) To their motion, Defendants attached the declaration of

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defense counsel Aseil Mohmoud, which states that Defendants did not receive service of

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Plaintiff’s Interrogatories until March 1, 2019. (Id.; ECF No. 39-1 ¶ 2.) As such,

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Defendants argue that their responses to Plaintiff’s Interrogatories are not due until April

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3, 2019. (ECF No. 39 at 2.)

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Defendants also argue that Plaintiff’s motion is procedurally deficient because

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Plaintiff “failed to meet and confer or make any attempt to resolve this premature discovery

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dispute prior to filing this motion,” as required by Federal Rule of Civil Procedure 37(a)(1).

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(Id.) Defendants request $340 in sanctions for the time spent responding to Plaintiff’s

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motion. (Id. at 3.)

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The Court agrees with Defendants and finds that Plaintiff’s motion is premature.

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Under Federal Rule of Civil Procedure 33(b)(2), a responding party has 30 days after being

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served with interrogatories to serve its responses and any objections. Additionally, if

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service is made by mail, an additional three days are added to the response deadline. Fed.

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R. Civ. P. 6(d). The Proof of Service by Mail attached to Plaintiff’s Interrogatories

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indicates that Plaintiff sent Defendants the Interrogatories on January 18, 2019, which

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would have made Defendants’ responses due by February 20, 2019. However, Defendants

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have provided in a declaration under penalty of perjury that they did not receive the

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Interrogatories until March 1, 2019. (ECF No. 39-2 ¶ 2.) Defendants could not have

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responded to Plaintiff’s Interrogatories before they received them. Therefore, the Court

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sets April 4, 2019, as the deadline for Defendants to respond to Plaintiff’s Interrogatories.

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As this deadline had not yet passed at the time of filing, Plaintiff’s Motion to Compel is

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premature.

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As to Defendants argument that Plaintiff’s motion is procedurally deficient because

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he did not comply with Rule 37(a)(1)’s meet and confer requirement, the Court is not

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unsympathetic to the difficulties that this requirement poses for an incarcerated litigant.

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Therefore, the Court will not fault Plaintiff for failing to meet and confer with Defendants

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prior to filing the instant motion. However, as Defendants highlight, Plaintiff did not
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“make any attempt” to contact Defendants before filing his motion. (ECF No. 39 at 2.) In

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the future, the Court would accept either written correspondence or a telephonic conference

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with defense counsel in satisfaction of the meet and confer requirement. See, e.g., Madsen

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v. Risenhoover, No. C 09–5457 SBA (PR), 2012 WL 2873836, at *3 (N.D. Cal. June 28,

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2012) (finding that the meet and confer requirement applies to incarcerated individuals but

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noting that the incarcerated plaintiff may send a letter to the defendants). Accordingly, the

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Court will not entertain any additional motions to compel filed by Plaintiff absent

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certification that Plaintiff has at least attempted to meet and confer with Defendants. See

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Rogers v. Giurbino, 288 F.R.D. 469, 478 (S.D. Cal. 2012) (waiving the meet and confer

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requirement for a pro se, incarcerated plaintiff’s motion to compel but cautioning the

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plaintiff against further failure to comply).

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Finally, the Court declines to award Defendants sanctions for opposing Plaintiff’s

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motion. Rule 37(a)(5)(B) states that if a motion to compel is denied, the Court “must, after

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giving an opportunity to be heard, require the movant . . . to pay the party . . . who opposed

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the motion its reasonable expenses incurred in opposing the motion, including attorney’s

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fees.” Fed. R. Civ. P. 37(a)(5)(B). However, “the court must not order this payment if the

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motion was substantially justified or other circumstances make an award of expenses

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unjust.” Id.

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Here, Defendants contend that “there is no justification for Plaintiff’s filing of a

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motion to compel just days after serving the [Interrogatories] on Defendants, and an award

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of expenses is not unjust because Plaintiff gave Defendants no opportunity to respond.”

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(ECF No. 39 at 3.) However, from the Proof of Service by Mail corresponding to Plaintiff’s

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Interrogatories, it appears that Plaintiff sent his Interrogatories to Defendants on January

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18, 2019, and constructively filed the instant motion on March 5, 2019. (ECF No. 38 at 1,

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2.) From the briefing before the Court, it is unclear why Defendants did not receive the

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Interrogatories until March 1, 2019. Nevertheless, given that it appears Plaintiff mailed

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his Interrogatories on January 18, 2019, the Court finds that Plaintiff was not unreasonable

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in believing Defendants’ responses were overdue.
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Because the deadline for Defendants to respond to Plaintiff’s Interrogatories had not

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yet passed at the time of filing, Plaintiff’s Motion to Compel (ECF No. 38) is hereby

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DENIED AS PREMATURE. Additionally, the Court declines to award Defendants fees

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for opposing Plaintiff’s motion.

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IT IS SO ORDERED.
Dated: April 3, 2019

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