Sarnowski v. Peters et al

Filing 45

OPINION AND ORDER: The Court GRANTS defendants Motion to Compel Response to Defendants First Request for Production of Documents and First Request for Interrogatories. 37 . Plaintiff shall fully and properly respond to defendants discovery requests, to the extent she has not done so already. Signed on 10/20/17 by Magistrate Judge Patricia Sullivan. (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PENDLETON DIVISION

KATHERINE SARNOWSKI, Personal
Representative of the Estate of Damion
Banks,

Case No. 2:16-cv-00176-SU
OPINION
AND ORDER

Plaintiff,
v.
COLLETTE PETERS, Personally; TONIA
RIDLEY, Personally; BRIDGETT
WHELAN, Personally; JOHN MYRICK,
Personally; and SGT. ANNETTE
HOUSTON, Personally,
Defendants.
_________________________________________
SULLIVAN, United States Magistrate Judge:
Before the Court is defendants’ Motion to Compel Response to Defendants’ First Request
for Production of Documents and First Request for Interrogatories. (Docket No. 37). In her
response to defendants’ Motion, plaintiff claims she has cured any deficiencies in her responses

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to defendants’ discovery requests. (Docket No. 41). The Court has detailed the factual and
procedural background of the parties’ discovery disputes in its earlier Opinion and Order on
plaintiff’s Motion to Compel. (Docket No. 44). For the following reasons, the Court GRANTS
defendants’ Motion to Compel.
LEGAL STANDARD
Under Fed. R. Civ. P. 37(a)(3)(B)(iii) and (iv), a party may move for an order compelling
answers to interrogatories or the production of requested documents.
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1).
“Failure to object to a discovery request within the time permitted by the Federal Rules of
Civil Procedure, or within the time to which the parties have agreed, constitutes a waiver of any
objection.” L.R. 26-5(a); see also Fed. R. Civ. P. 33(b)(4) (“Any ground not stated in a timely
objection is waived . . . .”).
If the court grants a motion to compel discovery responses, “the court must, after giving
an opportunity to be heard, require the party . . . whose conduct necessitated the motion, the
party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred
in making the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A) (emphasis added).
A party who “fails to obey an order to provide or permit discovery” may be sanctioned,
including by rendering default judgment. Fed. R. Civ. P. 37(b)(2)(A), (b)(2)(A)(vi).

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ANALYSIS
Defendants seek an order compelling plaintiff to respond to their First Request for
Production of Documents and First Set of Interrogatories. Defendants served those discovery
requests, along with their First Request for Admissions, on April 7, 2017. Washington Decl. ¶ 2,
Ex. 1-3 (Docket No. 38). Plaintiff’s responses to those requests were due May 8, 2017. Id. On
May 8, 2017, plaintiff provided “partial responses” to the requests for admission, but no
responses to the requests for production or interrogatories. Id. ¶ 3. On May 9, 2017, defendants
emailed plaintiff’s counsel asking when they could expect responses to the requests for
production and interrogatories, and plaintiff’s counsel responded, “Soon.” Id., Ex. 4. On May
10, 2017, defendants again emailed plaintiff’s counsel, stating that because plaintiff failed to
respond to the requests for production or interrogatories, she waived her right to object to those
requests. Id., Ex. 5; Fed. R. Civ. P. 33(b)(2), 34(b)(2)(A). Defendants also stated that because
plaintiff had failed to respond to certain requests for admission, those requests would be deemed
admitted pursuant to Fed. R. Civ. P. 36(a)(3). Washington Decl., Ex. 5 (Docket No. 38). “As of
the date of the filing of Defendants’ Motion to Compel, Plaintiff has yet to serve Defendants
with any responses or objections to Defendants’ discovery requests.” Id. ¶ 3.
In her response to defendants’ Motion, plaintiff asserts that “Defendants did not properly
confer by phone or otherwise, prior to filing this Motion to Compel.” Pl. Resp., at 1 (Docket No.
41).

“However,” plaintiff continues, “the issue is moot as Plaintiff has already produced

responses this week that shall cure the deficiencies.” Id. Plaintiff filed that Response on July 27,
2017. That Response provides no substantive objection to defendants’ requests or Motion.
Plaintiff’s argument that defendants did not comply with Local Rule 7-1(a)(1)(A)’s
conferral requirement is misplaced; the June 14, 2017, Status Conference, in which the Court

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addressed the parties’ discovery disputes and gave them thirty days to submit their motions to
compel (Docket No. 36), was the conferral.
The Court has reviewed defendants’ discovery requests and finds that they are relevant
and proportional, pursuant to Fed. R. Civ. P. 26(b)(1).
Because reply briefing is generally not permitted on motions to compel, L.R. 26-3(c),
defendants have not had the opportunity to address whether plaintiff produced discovery
responses that cure the alleged deficiencies, as counsel claimed. The Court assumes that plaintiff
has indeed provided satisfactory responses to defendants’ requests for production and
interrogatories.

Nevertheless, plaintiff has not objected to or disputed defendants’

characterization of the parties’ discovery conduct, including regarding plaintiff’s failure to object
to defendants’ discovery requests or to timely respond.

Accordingly, the Court GRANTS

defendants’ Motion to Compel. To the extent that plaintiff has failed to object or respond to
defendants’ discovery requests, she has waived any objection and shall fully and properly
respond to them. Failure to so respond may result in the imposition of sanctions, including
dismissal. Fed. R. Civ. P. 37(b)(2)(A)(vi).
Defendants, citing Fed. R. Civ. P. 37(a)(5)(A), request that the Court require plaintiff to
pay defendants’ expenses in bringing their Motion, including attorney’s fees.

Defendants,

however, have provided no evidence of expenses or fees. (Plaintiff does not address the fees
request in her Response.) The Court is unable presently to determine the merits, reasonableness,
or amount of any costs or fees request. Defendants may separately move for an award of
expenses, including by addressing the merits of any award and the amount requested.

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CONCLUSION
For these reasons, the Court GRANTS defendants’ Motion to Compel Response to
Defendants’ First Request for Production of Documents and First Request for Interrogatories.
(Docket No. 37). Plaintiff shall fully and properly respond to defendants’ discovery requests, to
the extent she has not done so already.
IT IS SO ORDERED.
DATED this 20th day of October, 2017.

/s/ Patricia Sullivan
PATRICIA SULLIVAN
United States Magistrate Judge

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