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Johnson v. Dovey

August 3, 2010

GARRISON S. JOHNSON, PLAINTIFF,
v.
JOHN DOVEY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DENYING PLAINTIFF'S FIRST MOTION TO COMPEL AND IMPOSITION OF SANCTIONS (ECF NO. 52)

ORDER DENYING PLAINTIFF'S SECOND MOTION TO COMPEL WITHOUT PREJUDICE TO REFILING (ECF NO. 61)

Order

I. Background

Plaintiff Garrison S. Johnson ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants Dunnahoe, V. Ybarra, Cunningham, Medrano, Holguin, Valasquez, G. Ybarra, Curliss, J. Gonzales, and K. Powell. Pending before the Court is Plaintiff's motion to compel, filed March 4, 2010, and Plaintiff's second motion to compel, filed May 17, 2010.

II. March 4, 2010 Motion To Compel and Sanctions

Plaintiff seeks to compel further response from Defendants V. Ybarra, Cunningham, Medrano, Gonzales, Powell, and Dunnahoe to Interrogatories Nos. One and Two per Defendant. The Court construes this as a reference to Plaintiff's first and second set of interrogatories. Plaintiff also seeks sanctions in the amount of $700.00 against Defendants pursuant to Federal Rule of Civil Procedure 37(a)(4). The Court construes this as a motion for sanctions under Rule 37(a)(5). Defendants filed an opposition on March 18, 2010. (Defs.' Opp'n, ECF No. 55.)

A. Sanctions

Plaintiff contends that he submitted interrogatories to Defendants on November 11, 2009, December 13, 2009, and December 14, 2009, but the Defendants failed to respond. (Mot. Compel 1, ECF No. 52.) Plaintiff contends that he sent a letter to defense counsel on February 6, 2010, seeking resolution of this matter without court order. (Mot. Compel, Ex. A, dated February 6, 2010.) Plaintiff also submits a certification stating that he attempted to resolve discovery without court action. (Mot. Compel, Ex. B, dated February 28, 2010.) No proofs of service were submitted in support.

Defendants admit that no due date was entered at counsel's office, and thus their responses were not timely. (Defs.' Opp'n 2:9-15, ECF No. 55.) Counsel admits that she became aware of this error only after Plaintiff's February 6, 2010 letter. (Id. at 2:16-19.) Plaintiff did not wait for Defendants' responses, but instead served a motion to compel with the Court. (Id. at 2:19-21.) Defendants served their responses on March 18, 2010.

A review of the documents submitted indicates that Plaintiff was impatient regarding informal resolution of discovery disputes, and Defendants failed to timely respond. The Court may impose sanctions when a party provides the requested disclosure after the filing of the motion to compel, but must not do so if the movant filed the motion before attempting in good faith to obtain the discovery without court order. Fed. R. Civ. P. 37(5)(A)(i). The provisions regarding meeting and conferring prior to court action, while encouraged, are not mandatory. (Discovery And Scheduling Order ¶ 5, ECF No. 40.) The Court must not award payment if the failure to respond was substantially justified or other circumstances make an award of expenses unjust.

Fed. R. Civ. P. 37(a)(5)(A)(ii), (iii).

The Court declines to impose monetary sanctions on Defendants for their late responses. It appears that the failure to respond in a timely matter was on the part of Defense counsel. As Defendants did respond by March 18, 2010, the Court will not impose monetary sanctions. Accordingly, it is HEREBY ...


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