IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 6, 2008
ESTATE OF RICHARD BYRD, PLAINTIFF,
COUNTY OF KINGS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER DENYING ORDER TO SHOW CAUSE (Doc. 126) AND DIRECTING PLAINTIFF TO PROVIDE DISCOVERY AND PAY MONETARY SANCTION WITHIN 10 DAYS OF THE FILING DATE OF THIS ORDER
On May 9, 2008 Defendants Carl Campodonica, William and Lillian Campodonica Trust, John Julius, Garth Pecchenino, David Gresham, Hostetler Investments, LLC, and Bellevue Road Partners, LLC, filed a motion to compel responses to Defendants' Request for Production, Set One. Plaintiff, represented by Kevin Little, did not file a written opposition to the motion to compel and presented nothing at the hearing on July 14, 2008 excusing or justifying the failure to file a written opposition to the motion or to provide the requested discovery. At the July 14, 2008 hearing, the motion to compel was granted and Plaintiff orally 1 ordered to file responses to the discovery by July 30, 2008. Mr. 2 Little represented to the Court that he would do so. Mr. Little 3 was also ordered to pay $840.00 in attorneys' fees as a sanction 4 for the failure to provide discovery. On July 23, 2008, a 5 Memorandum Decision and Order was filed, granting the motion to 6 compel, directing that responses to the requested discovery be 7 provided by July 30, 2008, and ordering Mr. Little to pay as a 8 sanction pursuant to Rule 37(a)(5)(A), attorneys' fees in the 9 amount of $840.00 by July 30, 2008. The July 23, 2008 Order specifically provided:
FAILURE TO TIMELY COMPLY WITH THIS ORDER WILL RESULT IN THE DISMISSAL OF THIS ACTION AGAINST DEFENDANTS CARL CAMPODONICA, WILLIAM AND LILLIAN CAMPODONICA TRUST, JOHN JULIUS, GARTH PECCHENINO, DAVID GRESHAM, HOSTETLER INVESTMENTS, LLC and BELLEVUE ROAD PARTNERS, LLC.
On July 31, 2008, Defendants filed an Application for an Order to Show Cause why this action should not be dismissed because of Plaintiff's failure to provide responses to the requested discovery by July 30, 2008 and because of Mr. Little's failure to pay the attorneys' fees by July 30, 2008. David L. Emerzian, counsel for Defendants, avers:
3. On July 14, 2008, I caused a letter dated the same to be sent to Mr. Little reminding him of the July 30, 2008, date that he was to produce the responsive documentation, and pay monetary sanctions....
4. As of the drafting of this declaration [July 31, 2008], neither my office, my clients, nor myself, have received a single responsive document, a payment of any monetary sanction amount, nor an explanation from Plaintiff's counsel regarding his blatant failure to comply with this Court's Order. On July 30, 2008, Mr. Little filed a Declaration under seal (Doc. 124). Among other things, Mr. Little avers that he was in an automobile accident on July 14, 2008, was medically cleared with respect to his injuries on July 29, 2008, and that July 30, 2008 was the first day since July 14, 2008 that he has done any legal work at all. Given these representations by Mr. Little, the Order to Show Cause is DENIED. Mr. Little is ordered to comply with the July 23, 2008 Order within days following the filing date of this Order.
FAILURE TO TIMELY COMPLY WILL RESULT IN THE DISMISSAL OF THIS ACTION AGAINST DEFENDANTS CARL CAMPODONICA, WILLIAM AND LILLIAN CAMPODONICA TRUST, JOHN JULIUS, GARTH PECCHENINO, DAVID GRESHAM, HOSTETLER INVESTMENTS, LLC and BELLEVUE ROAD PARTNERS, LLC, WITHOUT THE NEED FOR A FURTHER ORDER TO SHOW CAUSE.
IT IS SO ORDERED.
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