The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Previously pending on this court's law and motion calendar for January 8, 2009, was defendants' motion to compel discovery and for monetary sanctions. Joseph Cooper appeared telephonically for moving defendant Horst Anton Wilhelm. Specially appearing for plaintiff, who did not file an opposition,*fn1 was Leland Moglen.*fn2 Having heard oral argument and reviewed defendant's motion, the court now issues the following order.
This action was brought by plaintiff who alleges injuries suffered as a result of a motor vehicle accident involving plaintiff and defendants. Plaintiff seeks damages for defendants' alleged negligence. Jurisdiction is based on diversity.
The instant motion concerns defendant Wilhelm's discovery propounded on plaintiff and plaintiff's total failure to respond to defendant's special interrogatories, set one, request for production of documents, set one, and request for admissions, set one. Defendant seeks an order requiring responses without objection and to deem the request for admissions admitted or in the alternative to compel responses with properly executed verifications. Defendant also seeks sanctions for bringing the motion in the amount of $1,750, as reduced by the non-incurred costs associated with traveling from Fresno to Sacramento for the hearing. DISCUSSION
Since plaintiff has not opposed the motion, defendant's version of events is accepted. The discovery requests were propounded on October 13, 2008, with responses due November 17, 2008. Plaintiff did not produce responses but indicated to defense counsel on at least three occasions that responses would be forthcoming, to no avail. Defense counsel attempted to meet and confer twice in December, 2008, but plaintiff's counsel still has not responded to any of the discovery. Cooper Decl., Ex. E.
The attorney who specially appeared at the hearing indicated that plaintiff was somewhat challenged and disabled, but that responses would be produced by January 16, 2008. These responses shall be provided without objections. Plaintiff will be permitted to respond to the requests for admissions also, and shall provide properly executed verifications to all such requests.
"Federal Rule of Civil Procedure 37 authorizes the district court, in its discretion, to impose a wide range of sanctions when a party fails to comply with the rules of discovery or with court orders enforcing those rules." Wyle v. R.J. Reynolds Industries, Inc., 709 F.2d 585, 589 (9th Cir. 1983). Professors Wright and Miller have opined:
Any failure to disclose, regardless of the reason for it, brings the sanctions of Rule 37 into play, although the reason for the failure is an important consideration in determining what sanction to impose.
If the failure is because of inability to comply, rather than because of willfulness, bad faith, or any fault of the party, the action may not be dismissed, nor a default judgment given, and less severe sanctions are the most that should be invoked. 8A C. Wright & A. Miller, Federal Practice and Procedure, § 2284, at 620-22 (1994). Rule 37 provides that in lieu of, or in addition to, imposing other sanctions,
If the motion is granted-or if the disclosure or requested discovery is provided after the motion was filed-the court must, after giving an opportunity to be heard, require the party or deponent 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. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith effort to obtain the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was ...