Hernandez v. Baker et al

Filing 120

ORDER DENYING # 117 Motion to Compel. Defendants are required to file a Notice by 2/18/2015 summarizing discovery responses as specified. Signed by Magistrate Judge William G. Cobb on 2/10/2015. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
9
10
11
12
13

INGINIO HERNANDEZ,

)
)
Plaintiff,
)
)
vs.
)
)
RENE BAKER, et al.
)
)
Defendants.
)
______________________________________)

3:13-cv-00083-MMD-WGC
ORDER
re: Doc. # 117

14
15

Before the court is Plaintiff's "Motion for an Order Compelling Discovery of the Federal Rules

16

of Civil Procedure by Compelling by Due Process Describe on That Basis it self Appearing to Pro Se

17

on Which A Plaintiff Trying to the Best of the Plaintiff Knowledge Upon." (Doc. # 117.)1 Defendants

18

have filed an opposition to Plaintiff's motion. (Doc. # 118.) No reply was filed.

19

BACKGROUND

20

The present filing by Plaintiff, which the court interprets as a motion to compel discovery

21

responses from Defendants, is one of a series of discovery motions submitted by Plaintiff. First, on

22

January 31, 2014, Plaintiff filed a motion for discovery. (Doc. # 44.) The motion was actually titled

23

"This Motion is Made Pursuant Too Fed. R. CiP 33. In Order for Compelling Discovery." In the first line

24

of line of Plaintiff's motion, Plaintiff added a "Note" stating "this motion seeks to compel production of

25

documents." (Doc. # 44 at 1.) Defendants interpreted Plaintiff's motion as a Fed. R. Civ. P. 34 request

26

for production of documents. Although Defendants were never served with a typical Rule 34-type of

27

request for production, Defendants indicated that nevertheless they were in the process of "gathering

28

documents that may be responsive to Plaintiff's request." (Doc. # 45 at 2.)
1

Refers to court's docket number.

1

At a hearing on March 14, 2014, regarding, inter alia, Plaintiff's motion to compel (Doc. # 44),

2

Plaintiff was advised by the court that the proper procedure relating to a motion to compel, if Plaintiff

3

is not satisfied with the responses, Plaintiff is first required to meet and confer with the responding party

4

to attempt to resolve the discovery dispute. If at that time Plaintiff believes he has been unable to resolve

5

a discovery dispute, the court advised Plaintiff that he could thereafter file a motion to compel. Plaintiff

6

was referred to the sections of the Federal Rules of Civil Procedure relating to production of documents

7

(Fed. R. Civ. P. 34) and motions to compel (Fed. R. Civ. P. 37 and Local Rule 26-7). The court found

8

Plaintiff's motion (Doc. # 44) improper and premature and denied Plaintiff's motion. (Doc. # 50 at 4-5.)

9

Several months later on August 4, 2014, Plaintiff filed another motion to compel discovery.

10

(Doc. # 81.)2 In response, Defendants stated that after receiving Plaintiff's earlier motion for discovery

11

(Doc. # 44) in January, 2014, which as noted above Defendants had interpreted as a request for

12

production, Defendants represented they produced the requested documents on March 3, 2014. (Doc.

13

# 87 at 2.) Subsequent to that production, Defendants stated no other discovery requests, objections or

14

communications were received from Plaintiff. Defendants cited Plaintiff's failure to comply with Local

15

Rule 26-7 regarding the party’s obligation to first undertake an informal attempt to resolve the discovery

16

dispute, stating that "Plaintiff's motion to compel is the first time Defendants have ever heard of

17

Plaintiff's claim he did not receive discovery." (Id.) Plaintiff did not file a reply memorandum regarding

18

Defendants' Response.

19

On September 18, 2014, this court entered an order denying Plaintiff's motion (Doc. # 81)

20

without prejudice by reason of Plaintiff's failure to comply with Local Rule 26-7(a) which requires a

21

motion to compel to set forth in full the text of the discovery sought and the responses thereto. The court

22

also faulted Plaintiff for failing to comply with the requirement of Local Rule 26-7(b) requiring a party

23

to personally consult and sincerely attempt to resolve a discovery dispute before seeking court

24

intervention. More specifically, the court stated:

25

///

26

///

27
2

28

The motion was titled, "This Motion Be Brought Shall in Good Faithfulness an Order to Seeking Too Compelling
Discovery Enaccordace with the Law under Rule 37(A)(3)(B) shall be Discovery Rule and Regulations Infact." (Doc. #81.)

2

1

4

Upon reviewing Defendants' Discovery responses Plaintiff may engage
in a sincere attempt to resolve any remaining discovery dispute, and if
unsuccessful, file a motion that complies with Local Rule 26-7. Any
motion shall include a certification as to the efforts made to resolve the
dispute informally, and shall also include the discovery served by
Plaintiff and the Defendants' responses, along with a specific discussion
of how the responses are deficient.

5

(Doc. # 96 at 2-3.) The court noted that Defendants represented they had produced many if not all of the

6

documents sought by Plaintiff. The court cautioned Plaintiff that if he did pursue another motion to

7

compel, in addition to satisfying the “meet and confer” requirements, Plaintiff was also to "identify with

8

specificity what additional documentation is sought." (Id. at 3.)

2
3

9

Four months later Plaintiff brought the instant motion before the court. (Doc. # 117.) The court

10

interprets this motion as another motion to compel. Once again, however, Plaintiff did not submit the

11

specific discovery requests or the Defendants’ responses to which Plaintiff takes exception as required

12

by the Local Rules. Nowhere in the 78 pages comprising Plaintiff's current motion, has he "identif[ied]

13

with specificity what additional documentation is sought," as the court previously cautioned Plaintiff he

14

must do if he were to pursue another motion to compel. Instead, the motion appears to be a compilation

15

of copies of grievances, kites and law library request forms, none of which seem to pertain to the

16

purported discovery request Plaintiff made to the Defendants.

17

Although Plaintiff fails to provide the court copies of Defendants' responses to Plaintiff's

18

discovery – which apparently relate back to his initial motion for discovery (Doc. # 44, 1/31/2014), as

19

no other discovery requests are referenced – Defendants' response to Plaintiff's second motion to compel

20

(Doc. # 81) contained copies of Defendants' discovery responses. (Doc. # 87-1.) Nevertheless, the court

21

does not have the benefit of a cogent discussion by Plaintiff of the alleged inadequacies of Defendants'

22

discovery responses. However, without delving into the specifics, it facially appears Plaintiff contends

23

Defendants' responses to his request for production adequately do not adequately respond to and make

24

available to Plaintiff the documents sought by his discovery. (Doc. # 87-2.)

25

Defendants also assert Plaintiff failed to comply with the meet and confer process. Plaintiff, on

26

the other hand, states that "the Defendants counsels has failed to confer in good faith prior to filing the

27

reason way that maken improper discovery in an attempt to obtain it on returning by lacks the

28

supplement discovery or their discovery responses or other relief that also Plaintiff have been
3

1

requesting." (Doc. # 117 at 2.) Plaintiff' states he has complied with LR 26-7 regarding personal

2

consultation or attempting to resolve the matter with the Defendants. "In fact," he states, his "motion

3

to compel is the second of the three or the four motions that the Plaintiff [has]...submitted, but have not

4

receive any [of] the discovery." The filing of a motion to compel, however, does not equate with

5

personal consultation or attempting to resolve the matter without court intervention. (Doc. # 117 at 6.)

6

While it appears there may have been an adequate effort to satisfy the meet and confer requirements,

7

nevertheless the court once again has not been specifically apprised of the nature of the discovery

8

dispute. Nor does Plaintiff state what intervention he seeks from the court as to discovery. Instead, it

9

appears as if Plaintiff is seeking the court to address what are essentially a litany of new grievances.

10

Plaintiff also alleges that although the Defendants said they submitted a second copy of the

11

documents they produced, he has not received it. (Id.) In response, the Defendants state they "agree to

12

supplement their discovery responses but all other relief should be denied." (Doc. # 118 at 2.) Although

13

the court is denying Plaintiff's motion to compel, Defendants are required to file a Notice by

14

February 18, 2015, summarizing the supplemental discovery responses they have served upon

15

Plaintiff referred to in Doc. # 118 at 2.

16

Plaintiff's motion for an order compelling discovery (Doc. # 117) is DENIED.

17

IT IS SO ORDERED.

18

DATED: February 10, 2015.

19

____________________________________
WILLIAM G. COBB
UNITED0 STATES MAGISTRATE JUDGE

20
21
22
23
24
25
26
27
28
4