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Lopez v. BNSF Railway Co.

July 31, 2009

MARY G. LOPEZ, INDIVIDUALLY AND AS SUCCESSOR-IN INTEREST ON BEHALF OF DECEDENT, SALVADOR V. LOPEZ, ET AL., PLAINTIFFS,
v.
BNSF RAILWAY COMPANY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER GRANTING MOTION TO COMPEL IN PART ORDER DENYING MOTION FOR SANCTIONS IN PART (Document 70)

I. INTRODUCTION

On June 16, 2009, Defendants Amtrak and BNSF (hereinafter "Defendants") filed a Motion to Compel based on Plaintiffs, Mary Lopez and Salvador Lopez's ("Plaintiffs") lack of compliance with discovery including their failure to serve Initial Disclosures, as well as their failure to respond to Interrogatories, and Requests for Production of Documents. Plaintiffs did not file an opposition to the motion. On July 23, 2009, Defendants filed notice that they had not received an opposition to the motion or additional responses to discovery.

A hearing was held before the Honorable Gary S. Austin on July 30, 2009. Jason Shane appeared telephonically on behalf of the Defendants. Mary Lopez and Salvador Lopez personally appeared pro se. Upon a review of the pleadings, as well as the arguments presented at the hearing, Defendants' Motion to Compel is GRANTED IN PART. Defendants' Motion for Sanctions is DENIED.

II. RELEVANT PROCEDURAL HISTORY

Plaintiffs filed their action in the Kern County Superior Court on August 24, 2007, alleging causes of action for (1) wrongful death; (2) negligence; and (3) dangerous condition of public property. On September 26, 2009, Defendants Amtrak and BNSF Railway Company filed a Motion of Removal. On October 26, 2009, Plaintiffs filed a Motion to Remand. The Motion to Remand was denied by this Court on December 7, 2007. Doc. 20.*fn1

According to the complaint, on August 7, 2006, Salvador V. Lopez was driving a 1997 Freightliner Truck on SR-43. Mr. Lopez turned left onto Peterson Road and drove eastbound approximately fifty feet until he entered into a railroad crossing located in an unincorporated area within the County of Kern, California. Upon entering the railroad crossing, Mr. Lopez's truck was struck by Amtrak Train Number 701, which was traveling northbound on the BNSF railroad tracks. Plaintiffs contend that Mr. Lopez's truck was completely destroyed by the collision and that the collision resulted in Mr. Lopez's death.

Plaintiffs further allege that the Amtrak train was traveling at an unsafe and dangerous speed, the railroad crossing was not protected with an automatic gate for traffic entering, approaching or crossing from Peterson Road or SR-43, the railroad crossing was inadequately protected with old and obsolete flashers and the flashers were not properly maintained or properly cleaned.

Plaintiffs filed suit against BNSF, Amtrak, the State of California, the California Department of Transportation (CalTrans), the County of Kern, the City of Delano, the City of McFarland, the City of Wasco and Does 1 through 200. Since the complaint was filed, the State of California, CalTrans, the City of Delano, the City of McFarland and the City of Wasco have been dismissed from this action. On July 10, 2009, County of Kern's Motion for Summary Judgment was granted and a proposed final order dismissing Kern County as a party is pending. Docs. 78 and 79.

III. THE DISCOVERY DISPUTE

A. Initial Disclosures

On November 21, 2008, a scheduling conference was held. According to a Scheduling Conference Order issued on November 24, 2008, initial disclosures pursuant to Fed. R. Civ. P. 26(a)(1) were due on December 5, 2008. The non-expert discovery deadline is December 18, 2009. Non-dispositive motions are to be filed no later than January 4, 2010. To date, neither Mary Lopez or Salvador Lopez served their initial disclosures on counsel for BNSF and Amtrak, nor did they respond to numerous written discovery requests as outlined below.

B. Written Discovery Requests

On March 9, 2009, Amtrak and BNSF propounded numerous discovery requests to Plaintiffs. These requests included Amtrak's Interrogatories to Mary Lopez, Set One, BNSF's Interrogatories to Mary Lopez, Set One, Amtrak's Interrogatories to Salvador Lopez, Set One, Amtrak's Request for Production of Documents to Mary Lopez, Set One, and Amtrak's Request of Production of Documents to Salvador Lopez. Declaration ...


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