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Rick W. Cordeiro v. Sysco Food Services of Sacramento

December 16, 2010


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


Presently before the court is defendant's unopposed motion to compel plaintiff to:

(1) serve its initial disclosures pursuant Federal Rule of Civil Procedure 26(a)(1), which plaintiff failed to serve by the June 24, 2010 deadline; and (2) respond to written discovery propounded by defendant, to which plaintiff had filed no response at the time of the filing of the pending motion. (Dkt. No. 18.) Defendant also seeks the award of reasonable expenses or sanctions in the amount of $812.50 for having to file the motion to compel. Defendant noticed its motion for a hearing to take place on December 16, 2010. Plaintiff did not file a written opposition or a written response stating plaintiff's non-opposition to defendant's motion to compel.

On December 16, 2010, the undersigned held a hearing on defendant's motion. (Dkt. No. 19.) Attorney Robin E. Weideman appeared on defendant's behalf. Attorney Michael D. Welch appeared on plaintiff's behalf. For the reasons stated below, the undersigned grants defendant's motion to compel in its entirety, including an award of defendant's reasonable expenses incurred in preparing the motion.


Plaintiff filed this disability discrimination action on March 10, 2010. (Dkt. No. 1.) On May 12, 2010, defendant filed an answer to plaintiff's complaint. (Dkt. No. 12.) On May 17, 2010, the undersigned conducted a Status (Pretrial Scheduling) Conference in this matter, which was attended by plaintiff's counsel, Michael D. Welch, of the firm Michael Welch Associates. On May 24, 2010, the undersigned entered a Status (Pretrial Scheduling) Order ("Scheduling Order"), which required that the parties exchange their respective initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1) on or before June 24, 2010. (Scheduling Order at 3, Dkt. No. 17.)

Although defendant timely served its initial disclosures on plaintiff, plaintiff did not timely serve his initial disclosures on defendant. (Weideman Decl. ¶ 2, Dkt. No. 18, Doc.

No. 18-2.) Defendant's counsel contacted plaintiff's counsel by letter on July 8, 2010, and on August 10, 2010, to inquire about plaintiff's failure to serve initial disclosures. (Id. & Exs. A-B.) Defendant's counsel's declaration, dated November 5, 2010, also states: "At one point, at least three months ago, Plaintiff's counsel left me a voice message indicating that his office somehow dropped the ball but assured me he would have the initial disclosures to me that week." (Id. ¶ 2.) Defendant had not received plaintiff's initial disclosures as of the filing of the pending motion to compel. (Id.)

On August 10, 2010, defendant served a first set of interrogatories and a first set of requests for production of documents on plaintiff. (Weideman Decl. ¶ 3 & Ex. C.) Although responses to this written discovery were due on September 13, 2010, plaintiff failed to respond. (Id. ¶ 3.) Defendant's counsel sent a meet-and-confer letter to plaintiff's counsel on September 22, 2010, but received no response. (Id. ¶ 3 & Ex. D.) Defendant's counsel attempted to follow up with plaintiff's counsel via telephone that same week, but received no response. (Id. ¶ 3.)

Defendant's counsel made a final attempt to meet and confer with plaintiff's counsel on October 29, 2010, sending a letter detailing plaintiff's and his counsel's failings in the discovery process. (See Weideman Decl. ¶ 4 & Ex. E.) According to defendant's counsel's declaration, plaintiff's counsel, Mr. Welch, left a voice mail message for an attorney in defendant's counsel's office to the effect that plaintiff would serve his initial disclosures and discovery responses on plaintiff by November 3, 2010. (Id. ¶ 4.) As of the date defendant filed its motion to compel, November 5, 2010, defendant had received neither the promised initial disclosures nor responses to the written discovery. (Id. ¶ 4.)

As noted above, defendant filed the pending motion to compel on November 5, 2010, and the motion is based on plaintiff's complete failure to provide initial disclosures and respond to written discovery requests. Defendant also seeks an order requiring plaintiff and/or plaintiff's counsel to pay defendant's fees and costs incurred in filing the pending motion to compel, which total $812.50. (Weideman Decl. ¶ 5.) The court's docket reveals that plaintiff did not file an opposition or any other response to defendant's motion to compel, which plaintiff was required to file at least seven days before the scheduled hearing date. See E. Dist. Local Rule 251(e).*fn1

Also as noted above, Mr. Welch appeared on plaintiff's behalf at the December 16, 2010 hearing on defendant's motion to compel. Mr. Welch was contrite and did not stand on any excuses for the failure to participate in discovery or his failure to communicate with defendant's counsel and the court regarding plaintiff's non-opposition to the granting of the motion to compel. He appropriately acknowledged that the responsibility for adequate communication lies with him, an officer of the court. However, Mr. Welch did relate that he has had trouble communicating with plaintiff. The court appreciates Mr. Welch's forthcoming remarks at the hearing and his apology to the court, but hopes in the future that Mr. Welch will make more timely efforts to communicate his client's position regarding a pending motion, especially when his client does not seek to oppose any such motion.

Based on remarks offered at the hearing, it appears that plaintiff has served on plaintiff's counsel some form of initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1). It also appears that plaintiff has sent responses to interrogatories to defendant's counsel that do not contain objections, but that plaintiff's counsel has not yet been able to obtain a verification of those responses from plaintiff. Finally, it appears that plaintiff might have served some documents responsive to defendant's requests for production, but that no written responses to those requests have yet been served. Although plaintiff and plaintiff's counsel now appear to be attempting to meet ...

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