Martin v. DePuy Orthopaedics, Inc. et al

Filing 26

ORDER Granting 24 Motion to Compel. Signed by Magistrate Judge Carl W. Hoffman on 5/14/15. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WILLIAM MARTIN,

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Plaintiff,

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vs.

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DEPUY ORTHOPAEDICS, INC., et al.,

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Defendants.

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2:14-cv-01060-RCJ-CWH
ORDER

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This matter is before the Court on Defendant DePuy Orthopaedics, Inc.’s (“Defendant”)
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Motion to Compel (#24), filed April 16, 2015. The motion is unopposed.1
This is a product liability action removed to this court on June 30, 2014.2 On December

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2, 2014, the court entered a scheduling order setting the discovery cutoff as August 31, 2015.
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(#23). Since that time, it appears Defendant has engaged in discovery with little cooperation or
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response from Plaintiff, resulting in the motion currently before the court seeking the following:
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(1) Plaintiff to serve Rule 26(a) initial responses, (2) Plaintiff to respond to overdue Rule 33 and
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Rule 34 discovery requests, and (3) Plaintiff to amend responses to several Rule 36 requests for
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admission. Plaintiff has chosen not to respond to the motion, thereby consenting to the granting
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of the relief requested. See Local Rule 7-2(d) (“The failure of an opposing party to file points
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and authorities in response to any motion shall constitute a consent to the granting of the
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motion.”).
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Defendant filed what is characterized on the docket as a reply, but is actually a notice of nonopposition. See Dkt. (#25).
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Plaintiff filed a motion to remand shortly after removal, which was denied. See Order (#19).

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1. Rule 26(a) Initial Disclosures
“A party must make the initial disclosures at or within 14 days after the parties’ Rule

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26(f) conference unless a different time is set by stipulation or court order . . . .” See Fed. R. Civ.

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P. 26(a)(C). In the parties’ proposed scheduling order, they anticipated postponing initial

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disclosures until after phase one of a bifurcated discovery period. See (#22) at ¶ 2. The proposed

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plan, however, was denied and discovery was not bifurcated. Thus, the time period to make Rule

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26(a) initial disclosures was October 31, 2014. The court does not dispute that failure to make

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Rule 26(a) disclosures is sanctionable conduct under Fed. R. Civ. P. 37(c)(1). Indeed, under

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Rule 37(c), “the party is not allowed to use that information or witness to supply evidence on a

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motion, at a hearing, or at a trial, unless the failure was substantially justified or harmless.”
Courts are given particularly wide latitude to issue sanctions under Rule 37(c)(1). Yeti by

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Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (holding district

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court did not abuse its discretion in excluding testimony of defendant’s only damages expert as a

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sanction). The exclusion penalty has been described as “self-executing” and “automatic.”

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Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir. 2008) (noting Rule

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37(c)(1)’s exclusion sanction provides a strong inducement for disclosure of material and

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affirming district court’s preclusion of undisclosed damages evidence). Nevertheless, the rule

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provides that “[i]n addition to or instead of” exclusion sanctions, the court may (1) order

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payment of the reasonable expenses and attorney’s fees caused by the failure, (2) inform the jury

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of the party’s failure, and (3) “impose other appropriate sanctions, including any of the orders

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listed in Rule 37(b)(2)(A)(i)-(vi).” See Fed. R. Civ. P. 37(c)(1)(A)-(C).

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Here, Defendant’s unopposed contention is that it has requested Rule 26(a) initial

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disclosures from Plaintiff several times to no avail. There is no dispute the disclosures were due

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long ago. Continued failure to make the disclosures is not in compliance with the applicable

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rules and puts Defendant at a disadvantage in preparing its defense. However, the court declines

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to enter exclusion sanctions at this stage, but will require, as suggested by Defendant, that

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Plaintiff make Rule 26(a) disclosures. Defendant may also, in accordance with Rule 37(c)(1)(A),

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submit an affidavit of reasonable expenses, including attorney’s fees, caused by Plaintiff’s
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failure.

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2. Rule 33 Interrogatories and Rule 34 Requests for Production

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The unopposed allegation in Defendant’s motion is that Plaintiff has not responded to

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Rule 33 interrogatories and Rule 34 requests for production. Responses were due on or before

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January 20, 2015, but the response date was extended to March 31, 2015 at the request of

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Plaintiff’s counsel. No responses have been provided. The failure to serve answers to

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interrogatories or requests for production is sanctionable under Fed. R. Civ. P. 37(d)(3), which

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provides that sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).

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Sanctions may also include an award of reasonable expenses, including attorney’s fees, incurred

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by the moving party.

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Plaintiff seeks an order compelling responses and an award of sanctions in the form of

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reasonable expenses, including attorney’s fees, incurred in filing this unopposed motion. The

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court agrees that Plaintiff must provide responses to the outstanding discovery requests. The

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court agrees further that Plaintiff’s failure to timely respond results in a waiver of objections.

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E.g. Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992).

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Instead of entering any of the orders listed in Rule 37(b)(2)(A)(i)-(vi), Defendant may submit an

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affidavit of reasonable expenses, including attorney’s fees, incurred.

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3. Rule 36 Requests for Admissions

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Defendant seeks an order requiring Plaintiff to provide amended answers to several Rule

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36 requests for admissions. Plaintiff did not respond to the allegation that the original responses

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are insufficient and, therefore, the court accepts the representations made by Defendant regarding

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the sufficiency of the initial responses. Accordingly, Plaintiff is instructed to serve amended

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answers within 14 days of this order. Moreover, Rule 37(a)(5) applies to an award of expenses

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on a motion regarding the sufficiency of a Rule 36 answer or objection. See Fed. R. Civ. P.

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36(a)(6). Rule 37(a)(5), in turn, provides that a court “must, after giving an opportunity to be

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heard, require the party . . . whose conduct necessitated the motion, the party or attorney advising

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that conduct, or both to pay the movant’s reasonable expenses incurred . . . including attorney’s

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fees.” Defendant is invited to submit an affidavit of reasonable expenses, including attorney’s
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fees in seeking amended answers to the Rule 36 requests.

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Based on the foregoing and good cause appearing,

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IT IS HEREBY ORDERED that Plaintiff’s Motion to Compel (#24) is granted.

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IT IS FURTHER ORDERED that Plaintiff shall serve Rule 26(a) initial disclosures by

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Friday, May 29, 2015.
IT IS FURTHER ORDERED that Plaintiff shall serve responses to the outstanding
Rule 33 and Rule 34 discovery requests by Friday, May 29, 2015, without objection.
IT IS FURTHER ORDERED that Plaintiff shall serve amended answers to the Rule 36
requests for admission by Friday, May 29, 2015.
IT IS FURTHER ORDERED that Defendant shall submit an affidavit of reasonable

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expenses, including attorney’s fees incurred in bringing this motion. Defendant is instructed to

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segregate expenses and fees according to the specific categories of discovery sought. The

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affidavit is due on or before June 8, 2015. The affidavit will not be considered if it is untimely.

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Prior to filing the affidavit, the court will also require counsel for the parties to meet and confer

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and attempt to resolve the fee issue without court intervention. Upon receipt of the affidavit, the

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court will set a briefing schedule for Plaintiff to respond.

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DATED: May 14, 2015.

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C.W. Hoffman, Jr.
United States Magistrate Judge

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