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Sorrell v. Kel-Tec CNC Industries

April 9, 2010

JONATHAN SORRELL, PLAINTIFF,
v.
KEL-TEC CNC INDUSTRIES, INC., DEFENDANT.



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

ORDER GRANTING MOTION TO COMPEL IN PART

(Document 18)

I. INTRODUCTION

On March 22, 2010, Defendant, Kel-Tec CNC Industries, Inc., (hereinafter "Kel-Tec" or "Defendant") filed a Motion to Compel based on Plaintiff's, Jonathan Sorrell's, (hereinafter, "Plaintiff") lack of compliance with discovery requests including Plaintiff's complete failure to provide intial disclosures, as well as a Plaintiff's complete failure to provide responses to Interrogatories and a Request for Production of Documents. (Doc. 18). Plaintiff did not file an opposition to the motion.

The matter was set for hearing on April 9, 2010 at 9:30 am.*fn1 Based on a review of the pleadings, the Court determined that the matter was suitable for decision without oral argument pursuant to Local Rule 230(c) and (g) and the hearing was vacated. Upon consideration of the pleadings, Defendant's Motion to Compel is GRANTED IN PART.

II. RELEVANT PROCEDURAL HISTORY

On November 26, 2008, Plaintiff filed this action against Defendant in the Fresno County Superior Court of California (Case No. 08CECG04151). Defendant removed this action pursuant to 28 U.S.C. § 1446(b) on August 20, 2009.*fn2 In the complaint, Plaintiff alleges that on or about November 25, 2007, he was using a Kel-Tec SU-16 rifle when it catastrophically failed. Plaintiff claims that this rifle is defective and he has asserted strict liability, negligence, and breach of express and implied warranty causes of action against Defendant. Plaintiff is seeking compensatory damages for his alleged injuries.

On November, 13, 2009, this Court issued a scheduling order requiring that the parties exchange initial disclosures by December 21, 2009. (Doc. 17). The Court also set the non-expert discovery deadline for August 6, 2010. Plaintiff filed the instant Motion to Compel on March 22, 2010, so the motion is timely filed.

III. THE MOTION TO COMPEL

A. The Requested Discovery

Defendant contends that Plaintiff has not served his initial disclosures despite repeated attempts on January 7, January 27, and March 3, 2010, to meet and confer with the Plaintiff to obtain the information. Declaration of John Tartaglia III, Esq. ("Tartaglia Decl.) dated March 22, 2010 at ¶¶ 1-6, 11-12 and attached Exhibits A, B and C. (Doc. 19 (1) -(4)). Moreover, on November 23, 2009, Defendant served two discovery requests on Plaintiff including: 1) Defendant's First Set of Interrogatories, and 2) Defendant's First Request for Production of Documents. Exhibits D and E attached to Tartaglia Decl. (Doc. 19 (5) and (6)). The responses to the discovery were initially due on December 23, 2009. However, the parties stipulated that Plaintiff's response to the Interrogatories and Request for Production of Documents would be due on January 27, 2010. Exhibit F attached to Tartaglia Decl. (Doc. 19 (7)). Despite this extension, Plaintiff failed to provide any responses to the discovery by January 27, 2010. Tartaglia Decl. at ¶ 10.

Defendant contends that several messages were left with Plaintiff's counsel prior to March 3, 2010. Defendant further asserts that when he spoke with Plaintiff's counsel on March 3, 2010, he was advised that Plaintiff's counsel only had initial draft responses to Defendant's discovery and responsive information still needed to be inserted. Tartaglia Decl. at ¶ 11. After the March 3, 2010 telephonic meet and confer session, Defendant's counsel advised Plaintiff's counsel that if full and complete responses to Defendant's discovery were not received by March 10, 2010, Defendant would file a motion to compel. Tartaglia Decl. at ¶ 11. Defendant contends that no discovery responses were received and the instant motion was filed. Tartaglia Decl. at ¶ 12.

B. Remedies requested:

Kel-Tec requests the following ...


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