Raya v. Calbiotech

Filing 29

ORDER Granting in Part and Denying in Part Defendant's 20 Motion to Compel Responses to Discovery and for Sanctions Against Plaintiff. Signed by Magistrate Judge Allison H. Goddard on 10/8/2019. (All non-registered users served via U.S. Mail Service)(ag)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT RAYA, Case No.: 3:18-cv-2643-WQH-AHG Plaintiff / Counter-Defendant, 12 13 v. 14 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO COMPEL RESPONSES TO DISCOVERY AND FOR SANCTIONS AGAINST PLAINTIFF CALBIOTECH, 15 Defendant / Counter-Claimant. 16 [ECF No. 20] 17 18 19 20 21 22 23 24 25 26 27 28 1 3:18-cv-2643-WQH-AHG 1 Before the Court is Defendant Calbiotech’s (“Defendant”) Motion to Compel 2 Responses to Discovery and for Sanctions against Plaintiff. ECF No. 20. Plaintiff Robert 3 Raya (“Plaintiff”), proceeding pro se, opposes the motion. ECF No. 24. For the reasons set 4 forth below, the Court GRANTS IN PART and DENIES IN PART the motion. 5 I. BACKGROUND 6 Defendant served Plaintiff with Interrogatories,1 Requests for Admission,2 and 7 Requests for Production of Documents3 (collectively, “Discovery Requests”). ECF No. 8 20-1 at 2. To date, Defendant has not received responses to any of the Discovery Requests. 9 Id. Thus, Defendant filed the instant motion to compel Plaintiff’s responses. Additionally, 10 in the same filing, Defendant has moved the Court for an order extending the fact discovery 11 cut-off, deeming the Requests for Admission admitted, and sanctioning Plaintiff for the 12 fees and costs incurred with bringing this motion. Id. at 3–4. Plaintiff opposes Defendant’s 13 motion, contending that his failure to respond to the discovery requests was based on a 14 misunderstanding. ECF No. 24 at 2. 15 Defendant served the Discovery Requests on Plaintiff by mail on July 18, 2019. ECF 16 No. 20-1 at 2. Plaintiff’s responses were due on August 20, 2019. See FED. R. CIV. P. 6(d). 17 One day before the response deadline, however, Defendant sent an email requesting that 18 Plaintiff stipulate to “an extension of the fact discovery deadline in this case from 19 September 10, 2019 to November 8, 2019, . . .” ECF No. 24 at 5. Defendant’s counsel told 20 Plaintiff that if he didn’t agree to this extension within 48 hours, Defendant would apply 21 ex parte for the extension. Id. (“Please let me know whether or not you are willing to 22 23 24 25 26 27 28 In this Order, “Interrogatories” refers to Set One, dated July 18, 2019. See ECF No. 20-3 at 2–10. 2 In this Order, “Requests for Admissions” refers to Set One, dated July 18, 2019. See ECF No. 20-4 at 2–7. 3 In this Order, “Requests for Production of Documents” refers to Set One, dated July 18, 2019. See ECF No. 20-5 at 2–9. 1 2 3:18-cv-2643-WQH-AHG 1 stipulate to the above-referenced extension request and I will prepare the necessary 2 paperwork to file with the court. In the event I do not hear from you within 48 hours I will 3 file an ex parte motion with the court seeking the extension”). Plaintiff, who is a pro se 4 litigant, understood this to mean that it would extend his deadline to respond to Defendant’s 5 Discovery Requests. ECF No. 24; see also ECF No. 24 at 2, 7. Given his pro se status, this 6 is a reasonable, if mistaken, interpretation of Defendant’s demand for an extension. 7 Defendant’s first inquiry as to the whereabouts of Plaintiff’s discovery responses 8 was not until August 23, 2019. ECF No. 20-6 at 2 (“My calendar indicates [discovery 9 responses] were due yesterday; however, we did not receive an[y] responses from you. Do 10 you intend to respond to those discovery requests, and if so when can we expect to receive 11 those responses?”). Defendant sent a second email on August 27, 2019, asking for a 12 telephonic meet and confer with Plaintiff. ECF No. 20-7. Plaintiff did not respond, and on 13 August 29, 2019, Defendant’s counsel contacted Judge Skomal’s chambers to schedule a 14 discovery conference with Judge Skomal. ECF No. 20-1. The discovery conference was 15 scheduled for September 3, 2019. ECF No. 18. Plaintiff failed to appear at the telephonic 16 conference. ECF No. 19. As a pro se litigant, Plaintiff does not receive filings via CM/ECF, 17 and instead receives them via U.S. Mail. Plaintiff contends that he did not receive notice 18 of the telephonic conference with Judge Skomal until September 4, 2019, the day after the 19 conference, because the Clerk’s Office mailed the notice on September 3, 2019. ECF No. 20 24 at 2. 21 Judge Skomal set a briefing schedule allowing Defendant to file this motion 22 and Plaintiff to file an opposition. ECF No. 19. Defendant filed the instant motion on 23 September 10, 2019. ECF No. 20. 24 II. LEGAL STANDARD 25 The party responding to Interrogatories, Requests for Admission, and Requests for 26 Production must serve its responses and any objections within 30 days of being served. 27 FED. R. CIV. P. 33(b)(2) (stating 30-day response limit for interrogatories); FED. R. CIV. P. 28 34(b)(2)(A) (stating 30-day response limit for requests for production); FED. R. CIV. P. 3 3:18-cv-2643-WQH-AHG 1 36(a)(3) (stating 30-day response limit for requests for admission). The propounding party 2 may bring a motion to compel responses to discovery if the responding party fails to 3 respond. FED. R. CIV. P. 37(a)(3)(B). A motion to compel discovery “must include a 4 certification that the movant has in good faith conferred or attempted to confer with the 5 person or party failing to make disclosure or discovery in an effort to obtain it without court 6 action.” FED. R. CIV. P. 37(a)(1). A court may deny a motion to compel because of a party’s 7 failure to meet and confer prior to filing the motion. Scheinuck v. Sepulveda, No. C09- 8 0727-WHA(PR), 2010 WL 5174340, at *1 (N.D. Cal. Dec. 15, 2010). 9 III. DISCUSSION 10 The instant motion arises under Federal Rule of Civil Procedure 37(a), which 11 authorizes a party to apply for an order to compel disclosure or discovery. Defendant’s 12 motion seeks a court order (1) compelling Plaintiff to respond to Interrogatories, Requests 13 for Admission, and Requests for Production of Documents; (2) deeming the Requests for 14 Admission admitted; (3) extending the fact discovery cut-off; and (4) sanctioning Plaintiff 15 for the fees and costs incurred with bringing the instant motion. ECF No. 20-1 at 3–4. The 16 Court will address these in turn. 17 18 a. Defendant’s Request to Compel Plaintiff to Respond to Defendant’s Discovery Requests 19 Though Plaintiff has presented good cause for misunderstanding the deadline that 20 his discovery responses were due, Plaintiff has not presented any reasons why he should 21 be exempted from responding at all. Despite the motion’s shortcomings, as discussed 22 below, the Court finds good cause to GRANT Defendant’s motion to compel Plaintiff’s 23 responses to Defendant’s Discovery Requests. Thus, Plaintiff is ordered to comply with 24 Defendant’s Discovery Requests. Plaintiff should take seriously this obligation. The Court 25 ORDERS that Plaintiff serve his responses to Defendant’s Interrogatories, Requests for 26 Admission, and Requests for Production of Documents no later than November 5, 2019. 27 This order does not rule on the merits of Defendant’s propounded discovery (i.e., whether 28 the questions asked or the documents requested are relevant or proportional). Thus, the 4 3:18-cv-2643-WQH-AHG 1 Court reiterates that this order requiring Plaintiff to respond to Defendant’s discovery 2 requests does not eliminate Plaintiff’s ability to object.4 b. Defendant’s Request to Deem the Requests for Admission Admitted 3 4 When served with requests for admission, if a party fails to answer or object within 5 the 30-day response period, those matters can be deemed admitted. See FED. R. CIV. P. 6 36(a)(3). However, an order deeming matters admitted is a “severe sanction.” Asea, Inc. v. 7 S. Pac. Transp. Co., 669 F.2d 1242, 1247 (9th Cir. 1981). Where a party fails to produce 8 any response, courts look to whether there has been a request in good faith for an extension 9 of time within which to respond. See, e.g., Browning v. Lilien, No. 15cv2208-GPC-BLM, 10 2016 WL 4917115, at *5–6 (S.D. Cal. Sept. 15, 2016); Sylvan Learning Ctr. v. Gordon, 11 No. 98-2146-AJL, 1998 WL 34064495, at *4 (D.N.J. Dec. 15, 1998). Here, Plaintiff 12 “requests the fact discovery deadline be extended to Nov. 8, 2019, as [Defendant’s counsel] 13 led him to believe[.]” ECF No. 24 at 3. Though Plaintiff requested that “fact discovery” be 14 extended, the Court liberally construes it as a request to extend the deadline for Plaintiff to 15 respond to Defendant’s Discovery Requests. See, e.g., Eldridge v. Block, 832 F.2d 1132, 16 1137 (9th Cir. 1987) (stating that federal courts should liberally construe the “‘inartful 17 pleading’ of pro se litigants”). As previously mentioned, Plaintiff reasonably 18 misunderstood the email from Defendant’s counsel, which inquired about extending the 19 fact discovery deadline, as extending his deadline to respond to Defendant’s Discovery 20 21 4 22 23 24 25 26 27 28 An objection not raised within 30 days after the responding party has been served is waived, “unless the court, for good cause, excuses the failure.” FED. R. CIV. P. 33(b)(4). “Good cause” is a non-rigorous standard that has been construed broadly across procedural and statutory contexts. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010). Here, Plaintiff neither objected nor responded to any of Defendant’s Discovery Requests. ECF No. 20-1 at 2. However, Plaintiff has provided the Court with an explanation for his failure. Based on Defense counsel’s email representations, Plaintiff, proceeding pro se, misunderstood that the “2-month extension of fact discovery” to mean an extension on his responses. As such, Plaintiff has established good cause for his failure to respond and therefore has not waived any objections to Defendant’s Discovery Requests. 5 3:18-cv-2643-WQH-AHG 1 Requests. The Court finds that Plaintiff requested in good faith an extension, and therefore 2 DENIES Defendant’s request to deem the outstanding Requests for Admission admitted. 3 c. Defendant’s Request to Extend the Fact Discovery Cut-Off 4 Defendant requests that the Court extend the fact discovery deadline “only so that 5 the discovery deadline does not impact Defendant’s ability to receive responses from 6 Plaintiff to the outstanding discovery requests and to take Plaintiff’s deposition if deemed 7 necessary.” ECF No. 20-1 at 4. 8 Parties seeking to continue a deadline must demonstrate good cause. FED. R. CIV. P. 9 16(b)(4) (“A schedule may be modified only for good cause and with the judge’s consent”); 10 Chmb.R. at 2 (stating that any request for continuance requires “[a] showing of good cause 11 for the request”). The good cause standard focuses on the diligence of the party seeking to 12 amend the scheduling order and the reasons for seeking modification. Johnson v. Mammoth 13 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (“[T]he focus of the inquiry is upon 14 the moving party’s reasons for seeking modification. . . . If that party was not diligent, the 15 inquiry should end.”) (internal citation omitted). 16 Here, Defendant presents no evidence that it sought to depose Plaintiff during the 17 four months that fact discovery was open. See ECF Nos. 13, 20-1. Instead, Defendant seeks 18 the extension “to take Plaintiff’s deposition if deemed necessary.” ECF No. 20-1 at 4 19 (emphasis added). Additionally, Defendant knew that it wanted to extend the fact discovery 20 deadline on August 19, 2019, but never requested said extension until its 21 September 10, 2019 motion, over three weeks later. See ECF No. 24 at 5 (stating that, on 22 August 19, 2019, “in the event I do not hear from you within 48 hours I will file an ex parte 23 motion with the court seeking the extension requested above[,]” though no ex parte motion 24 was ever filed). Thus, Defendant has not shown the diligence necessary to constitute good 25 cause. Accordingly, the Court DENIES Defendant’s request to extend the discovery 26 deadline to take Plaintiff’s deposition. 27 Because the Court ordered Plaintiff to respond to Defendant’s Discovery Requests 28 after the fact discovery deadline passed, the Court finds good cause and GRANTS the 6 3:18-cv-2643-WQH-AHG 1 request to extend the fact discovery deadline, only as to Plaintiff’s responses to Defendant’s 2 Discovery Requests. Should parties have disputes regarding Plaintiff’s responses, the Court 3 orders that the parties follow the procedures outlined in its Chambers Rules. The Court 4 expects counsel to make every effort to resolve all disputes without court intervention 5 through the meet and confer process pursuant to Local Rule 26.1(a). A failure to comply 6 in this regard will result in a waiver of a party’s discovery issue. If the parties reach an 7 impasse 8 efile_goddard@casd.uscourts.gov no later than November 27, 2019, seeking a telephonic 9 conference with the Court to discuss the discovery dispute. The email must include: (1) at 10 least three proposed times mutually agreed upon by the parties for the telephonic 11 conference; (2) a neutral statement of the dispute; and (3) one sentence describing (not 12 arguing) each parties’ position. The movant must copy the opposing counsel/party on the 13 email. No discovery motion may be filed until the Court has conducted its pre-motion 14 telephonic conference, unless the movant has obtained leave of Court. on any discovery issue, the movant must e-mail chambers at d. Defendant’s Request for Sanctions Against Plaintiff 15 16 Defendant seeks monetary sanctions against Plaintiff for his failure to provide any 17 discovery responses. ECF No. 20-1 at 5. The Court has great discretion in the imposition 18 of discovery sanctions. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 19 (9th Cir. 2001); Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir. 1983). Under 20 Rule 37(d)(3), a noncompliant party may be ordered to pay the other party’s “reasonable 21 expenses” caused by the failure to comply with the rules of discovery. FED. R. CIV. P. 22 37(d)(3). However, the “court must not order this payment [of reasonable expenses 23 incurred in bringing the motion] if: (i) the movant filed the motion before attempting in 24 good faith to obtain the disclosure or discovery without court action; (ii) the opposing 25 party’s nondisclosure, response, or objection was substantially justified; or (iii) other 26 circumstances make an award of expenses unjust.” FED. R. CIV. P. 37(a)(5)(A) (emphasis 27 added). 28 7 3:18-cv-2643-WQH-AHG 1 Here, the Court questions whether Defendant adequately attempted to obtain the 2 discovery responses without court action. First, Defendant’s counsel unreasonably sent an 3 email asking to telephonically meet and confer that same day or the next day. ECF No. 4 20-7 at 2 (“I would like to have a telephonic meet and confer conference with you today or 5 tomorrow concerning your failure to provide responses. . . Please let me know when is a 6 good time today or tomorrow for you to have this discussion with me.”). This is not enough 7 notice. Also, there is no evidence any follow up attempts were made when Plaintiff did not 8 respond within 48 hours, or that any phone calls were made to Plaintiff’s phone number 9 listed on CM/ECF or his previous filings. Instead, without meeting and conferring or 10 making a meaningful attempt to do so, Defendant’s counsel contacted the Court ex parte. 11 Had Defendant’s counsel meaningfully complied with Civil Local Rule 26.1, the Court 12 doubts that this motion would have been filed, since it was based on a clear 13 misunderstanding that reasonable minds could have resolved. 14 Moreover, in the Southern District of California, “[t]he court will entertain no 15 motion pursuant to Rules 26 through 37 [] unless counsel will have previously met and 16 conferred concerning all disputed issues. . . If counsel have offices in the same county, they 17 are to meet in person.” CivLR 26.1(a) (emphasis added). Here, Defendant’s counsel—with 18 an office in San Diego, i.e., in the same county as Plaintiff’s Santee residence—made no 19 effort to meet and confer in person, as the Local Rules require. ECF No. 20-7 at 2 (“I would 20 like to have a telephonic meet and confer conference with you today or tomorrow 21 concerning your failure to provide responses”). Thus, even if the Court ignores the short 22 notice in the email or lack of follow up, Defendant’s counsel still acted improperly. 23 Additionally, Defendant filed the instant motion after receiving an email from 24 Plaintiff clearly indicating his confusion about the discovery response deadline. Compare 25 ECF No. 24 at 7 (Plaintiff’s email to Defendant, indicating confusion about the discovery 26 deadlines, sent at 12:19 a.m. on September 10, 2019) with ECF No. 20 (the instant motion, 27 filed electronically by Defendant’s counsel at 4:16 p.m. on September 10, 2019, i.e., 28 16 hours after Plaintiff’s email). Although clearly relevant to the Court’s consideration of 8 3:18-cv-2643-WQH-AHG 1 Defendant’s motion, Defendant did not include Plaintiff’s September 10, 2019 email in the 2 discovery correspondence attached to the motion. Defendant’s failure to include this email 3 with the motion could be considered sanctionable. 4 Further, Defendant filed a reply brief that was not permitted by Judge Skomal (see 5 ECF No. 19), without first seeking leave of Court. Defendant would have been wise to 6 adhere to Judge Skomal’s briefing order. The reply brief violates the Code of Conduct that 7 governs attorney practice in this district. See CivLR 83.4. It is replete with unnecessary and 8 disparaging comments about Plaintiff, referring to his “so-called opposition,” and accusing 9 Plaintiff of dishonesty, bad faith, and improper motives. Lawyers are officers of the Court, 10 and it is a privilege to hold that position. They are expected to abide by the Code of Conduct 11 and treat all opposing parties, including pro se plaintiffs, with civility and respect. Before 12 seeking sanctions from the Court, Defendant should be sure its own hands are clean. 13 For the reasons mentioned above, as well as the Court’s previous determination that 14 Plaintiff’s failure to respond was substantially justified, the Court DENIES Defendant’s 15 request for sanctions. 16 IV. 17 18 19 CONCLUSION For the aforementioned reasons, the Court GRANTS IN PART and DENIES IN PART Defendant’s motion as follows: (1) Defendant’s motion to compel Plaintiff’s responses to Defendant’s Discovery 20 Requests is GRANTED. The Court orders that Plaintiff serve his responses to 21 Defendant’s Interrogatories, Requests for Admission, and Requests for 22 Production of Documents no later than November 5, 2019; 23 (2) 24 25 DENIED; (3) 26 27 28 Defendant’s request to deem the outstanding Requests for Admission admitted is Defendant’s request to extend the discovery deadline to take Plaintiff’s deposition is DENIED; (4) Defendant’s request to extend the fact discovery deadline as to Plaintiff’s responses to Defendant’s Discovery Requests is GRANTED. After meeting and 9 3:18-cv-2643-WQH-AHG 1 conferring, should the parties reach an impasse on any discovery issue, the 2 movant must e-mail chambers at efile_goddard@casd.uscourts.gov no later than 3 November 27, 2019; 4 (5) Defendant’s request for sanctions is DENIED. 5 6 IT IS SO ORDERED. 7 Dated: October 8, 2019 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 3:18-cv-2643-WQH-AHG

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