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Jonathan Sorrell v. Kel-Tec Cnc Industries


April 29, 2011


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


(Document 34)


On March 31, 2011, 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. (Doc. 34). The matter was set for hearing on April 22, 2011 at 9:30 am. Based on a review of the pleadings, the Court determined that the matter was suitable for decision without oral argument and the hearing was vacated. (Doc. 38). Upon consideration of the pleadings, Defendant's Motion to Compel is GRANTED.


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.*fn1 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 December17, 2010, this Court issued a second scheduling order setting the non-expert discovery deadline for March 31, 2011, and requiring that any motions to compel non-expert discovery be filed by that same day. Defendant filed the instant Motion to Compel on March 31, 2011, so the motion is timely filed. Plaintiff did not oppose the Motion to Compel or participate in the filing of the Joint Statement Regarding Discovery Disputes ("Joint Statement") pursuant to Local Rule 251.


Defendant contends that Plaintiff has not responded to several of Defendant's discovery requests, including Defendant's Second Set of Interrogatories Nos. 1 through 5 and Defendant's Second Set of Requests for Production of Documents Nos. 1, 2, 4, 5, 6, 7, 14, 18, 19.*fn2

Defendant's counsel contends that he attempted to contact Plaintiff's counsel on March 29 and 30, 2011 in an effort to obtain the discovery, however, these attempts were unsuccessful. Declaration of Edwin Brondo, Esq. ("Brondo Decl.") dated March 31, 2011 at ¶¶ 8 & 9 and attached Exhibits A - C. (Doc. 35). Defendant's counsel notes however, that on March 30, 2011, he was able to speak with Plaintiff's counsel and the parties agreed to enter into a stipulation in which some of Plaintiff's claims would be dismissed rendering several of the discovery disputes moot. Brondo Dec'l at ¶10 and attached Exhibit D. Plaintiff also indicated that supplemental discovery responses would be forthcoming.

However, on April 18, 2011, Defendant's counsel submitted a supplemental declaration indicating that Plaintiff never signed the agreed upon stipulation, nor had he supplied the supplemental information as promised. Brondo Dec'l dated April 18, 2011 at ¶¶ 7 & 8. (Doc. 37). Moreover, Defendant's counsel was unable to contact Plaintiff's counsel despite leaving five telephone messages for him. Id. at ¶ 7. As a result, Kel-Tec requests the Court order that Plaintiff provide complete responses to all of the discovery requests listed above. Moreover, Defendant also requests that because Plaintiff did not sign the stipulation as agreed, Plaintiff should be required to produce information and records related to all medical treatment including psychological injuries and mental impairment, and not just treatment related to Plaintiff's head injury.


F.R.Civ.P. 26(b) establishes the scope of discovery and states in pertinent part:

Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

"The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections." Oakes v. Halvorsen Marine Ltd., 179 F.R.D 281, 283 (C.D. Cal. 1998); Nestle Foods Corp. v. Aetna Casualty & Surety Co., 135 F.R.D. 101, 104 (D. N.J. 1990).

Fed. R. Civ. P. 33 (b) (1) (B) (2) requires that unless otherwise agreed upon, the responding party must serve its answers and any objections to interrogatories within thirty days after being served. Similarly, Fed. R. Civ. P. 34(b)(2)(B) requires parties respond to a request for production of documents within thirty days after being served.

Here, Plaintiff was served with supplemental discovery requests including a Second Set of Interrogatories and a Second Set of Requests for the Production of Documents on February 24, 2011. (Doc. 35-1). Although Plaintiff's counsel responded to the requests by noting several objections, he has not filed an opposition to Defendant's motion, nor has he participated in a joint statement outlining why his objections are proper. As such, the Court has reviewed Defendant's discovery requests and finds that they are relevant.


Based on the above, Defendant's Motion to Compel filed on March 31, 2011, is GRANTED. Within ten days, Plaintiff shall serve responses to Defendant's Second Set of Interrogatories Nos. 1 through 5, and to Defendant's Second Set of Requests for Production of Documents Nos. 1, 2, 4, 5, 6, 7, 14, 18, 19. Moreover, Plaintiff shall provide supplemental information and records relating to all medical treatment for psychological injuries and mental impairments, and not just for treatment with respect to plaintiff's alleged head injuries.

Failure to comply with this order may result in the imposition of sanctions including, but not limited to, monetary sanctions, and/or the exclusion of evidence at the time of trial, as well as dismissal of Plaintiff's case.



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