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Powell v. Fulton-El Camino Recreation and Parks District

August 24, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Presently before the court is plaintiff's motion to amend his responses to defendant's request for admissions propounded pursuant to Federal Rule of Civil Procedure 36 (the "RFAs"), which is set for hearing before the undersigned on September 2, 2010.*fn1 (Dkt. No. 11.) Having concluded that oral argument would not materially assist the court, the undersigned hereby submits defendant's motion on the briefs and record on file and will vacate the hearing date. For the reasons that follow, the undersigned will grant plaintiff's motion, but will grant defendant's request for additional time to depose plaintiff.


Plaintiff filed this action concerning plaintiff's employment with defendant in the Superior Court for the County of Sacramento, and, on October 30, 2009, defendant removed the action to this court. (Dkt. No. 2.) Defendant has filed an answer to plaintiff's complaint.*fn2 (Dkt. No. 5.) On February 25, 2010, the district judge presiding over this matter, United States District Judge Garland E. Burrell, Jr., entered a Status (Pretrial Scheduling) Order, which ordered that discovery in this case be completed by January 18, 2011. (Dkt. No. 10 at 2.)

On April 16, 2010, defendant propounded a first set of discovery requests that included a set of special interrogatories, a set of requests for the production of documents, and a set of request for admissions. (Parker Decl. ¶ 2 & Ex. A; Padzernik Decl. ¶ 10 & Ex. A.) Only the RFAs are the subject of plaintiff's pending motion, and plaintiff concedes that service of the RFAs was proper. (Pazdernik Decl. ¶ 4.) Responses to the RFAs were due May 20, 2010. (Parker Decl. ¶ 4.)

Plaintiff failed to timely respond to the RFAs. (See id.; see also Pazdernik Decl. ¶ 7.) Plaintiff's counsel declares that he first learned that the RFAs had been served, and that he had failed to respond to them, during plaintiff's deposition, which was taken on June 24, 2010.*fn3

(Pazdernik Decl. ¶¶ 4-6.) Although plaintiff's counsel technically takes "100%" of the responsibility for this error, he repeatedly blames his office staff for allowing the RFAs to go unanswered. (Pazdernik Decl. ¶¶ 7, 9.) Defendant's counsel declares that he was forced to prepare for plaintiff's deposition without the benefit of plaintiff's discovery responses. (Parker Decl. ¶ 6.)

On June 24, 2010, following adjournment of plaintiff's deposition, plaintiff's counsel drafted responses to defendant's RFAs and served them on defendant by facsimile.*fn4

(Pazdernik Decl ¶¶ 8, 11 & Ex. B; Parker Decl. ¶ 7.) Defendant subsequently received these responses by mail. (Parker Decl. ¶ 7.) Upon receipt of plaintiff's untimely responses to the RFAs, defendant's counsel informed plaintiff's counsel that once plaintiff failed to timely respond to the RFAs, the requests were deemed admitted. (Parker Decl. ¶ 8.) Defendant's counsel refused to stipulate to any amendment of plaintiff's responses to the RFAs and took the position that plaintiff must file a motion to amend his responses. (Pazdernik Decl. ¶ 6; Parker Decl. ¶ 8.)

On July 22, 2010, approximately two months after responses to the RFAs were due and one month after plaintiff served his untimely responses to defendant's RFAs, plaintiff filed the pending motion to amend his responses to the RFAs. (Dkt. No. 11.) Defendant opposes plaintiff's motion on the grounds that plaintiff's failure to timely respond to discovery and promptly file the instant motion caused defendant prejudice in preparing for plaintiff's deposition and in conducting other discovery in this action. Alternatively, defendant requests that he be permitted additional time to depose plaintiff if the court grants plaintiff's motion.

Although plaintiff's counsel offered no explanation in his initial moving papers for his delay in filing the pending motion, plaintiff's reply brief and accompanying declaration offer several excuses, some more meritorious than others, for failing to file the motion sooner. (See Pl.'s Reply Br. at 2-3, Dkt. No. 16; see also Suppl. Pazdernik Decl. ¶¶ 2-3, Dkt. No. 16, Doc. No. 16-1.) Because the undersigned ultimately concludes that plaintiff is entitled to relief regardless of the reasons for the delay in filing the motion, this order will not address in any detail the mitigating reasons offered by plaintiff's counsel.

Before turning to the merits of plaintiff's motion, the undersigned notes that the parties failed to comply with the requirements of Eastern District Local Rule 251, which generally requires the filing of a "joint statement re discovery disagreement." See E. Dist. Local Rule 251(a), (c). The parties filed no such statement. Nevertheless, the undersigned has considered plaintiff's motion as a matter of efficiency. Counsel for both parties are encouraged to review the court's Local Rules in detail.


Plaintiff's counsel admittedly failed to timely respond to defendant's RFAs. He offers no excuse other than his own error and the error of his office staff. Moreover, plaintiff's counsel was dilatory in filing the pending motion. The court empathizes with defendant's frustration with this level of practice and has its own frustrations with plaintiff's counsel. For example, plaintiff's counsel asserts in his brief that "[t]he courts have allowed relief under Rule 36(a)(6) Federal Rules of Civil Procedure when the failure to timely respond is due to the inadvertence or excusable neglect of counsel." (Pl.'s Memo. of P. & A. in Supp. of Mot. to Amend at 4.) However, plaintiff's counsel cites no such cases-indeed, plaintiff's counsel does not provide a single case citation in his entire memorandum of points and authorities. It is difficult to ...

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