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Villalpando v. Citrus Heights Police Dep't

July 6, 2009

SERGIO VILLALPANDO, PLAINTIFF,
v.
CITRUS HEIGHTS POLICE DEPARTMENT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Presently before this court is defendants' motion to compel discovery and for monetary sanctions, filed June 2, 2009. The matter was submitted without oral argument as plaintiff filed no opposition. Having reviewed defendants' motion, the court now issues the following order.

BACKGROUND

This action was brought by plaintiff who alleges violations under 42 U.S.C. §§ 1983 and 1988 for an unreasonable seizure and unlawful arrest by defendants as a result of a traffic stop. The complaint also alleges supervisory liability pursuant to an official policy, practice or custom. Plaintiff seeks damages.

The instant motion concerns discovery propounded by defendants Citrus Heights Police Department, Officer Culver, Officer Lee, and the City of Citrus Heights. Defendants allege a total failure to provide initial disclosures, respond to defendants' interrogatories, and respond to requests for production of documents, set one. Defendants seek an order requiring initial disclosures and responses without objection, and for sanctions for bringing the motion in the amount of $1,650.

DISCUSSION

Since plaintiff has not opposed the motion, defendants' version of events is accepted. Plaintiff was to provide initial disclosures within fourteen days after the court's status pretrial scheduling conference of December 15, 2008. Although defendants provided their initial disclosures on October 20, 2008, plaintiff never provided his initial disclosures. The discovery requests were propounded on April 21, 2009, with responses due May 16, 2009. Plaintiff did not request any extensions of time to respond. Prior to serving the motion to compel, defense counsel sent a letter to plaintiff by facsimile, outlining plaintiff's failures to provide discovery. Defense counsel also scheduled a meet and confer telephone conference for June 4, 2009, which was to occur after the June 2, 2009 filing of the instant motion to compel. Defense counsel states that if plaintiff agreed to provide discovery at the June 4th telephone conference, defendants would withdraw the motion. Defendants have not withdrawn the motion. Plaintiff still has not responded to any of the discovery. Tonon Decl., Ex. E.

"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 ...


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