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Deidra A. Lintz v. John E. Potter

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 23, 2011

DEIDRA A. LINTZ, PLAINTIFF,
v.
JOHN E. POTTER, POSTMASTER GENERAL,
U.S. POSTAL SERVICE, DEFENDANT.

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

ORDER

Presently before the court is plaintiff's motion to compel (Dkt. No. 36), which seeks to compel, among other things, defendant's discovery responses to various discovery requests without the inclusion of any objections; the production of additional responsive documents; and a finding that defendant waived all of its objections to, and is deemed to have admitted all of, plaintiff's requests for admissions by not serving discovery responses for nearly nine months.*fn1 Plaintiff's portion of the joint statement re discovery disagreement also seeks relief relative to several discovery matters that are not properly before the court. Although the discovery properly encompassed by plaintiff's motion to compel was served on defendant in or around January 2011 at the latest, defendant shockingly still has not served plaintiff with formal discovery responses. Additionally, defendant's portion of the joint statement does not substantively respond to the discovery issues presented to the court; instead, defendant largely attempts to blame plaintiff for defendant'sdiscovery failures and requests that defendant not be sanctioned for its conduct.

The undersigned heard this matter on the September 22, 2011 calendar. Plaintiff, who is proceeding pro se, appeared at the hearing and represented herself. Assistant United States Attorney Edward Olsen, who is not defendant's counsel of record, appeared on behalf of defendant. Defendant's counsel of record, Assistant United States Attorney J. Earlene Gordon, was unable to attend the hearing in person or by telephone because of her travel schedule.*fn2 (Joint Statement at 25 n.1.) The undersigned conducted a lengthy hearing in regards to the pending motion and would have appreciated Ms. Gordon's appearance.

As stated at the hearing, the undersigned is quite sympathetic to defendant's counsel's personal crises that impacted her handling of the discovery in this case, and plaintiff demonstrated empathy and was accommodating in that regard. However, defendant's counsel's unresponsiveness in regards to the pending discovery disputes, both as to plaintiff and in the briefing of this motion, and lack of contrition in regards to the various discovery failings in this case is at best unfathomable. Morever, defendant's counsel's attempts to blame plaintiff for defendant's failings in this case is regrettable. In any event, in consideration of the briefs and record in this case, and for the reasons stated at length on the record at the September 22, 2011 hearing, the court grants plaintiff's motion to compel in part, and denies it in part.

Specifically, IT IS HEREBY ORDERED that:

1. Plaintiff's motion to compel (Dkt. No. 36) is granted in part and denied in part.

2. In regards to plaintiff's Interrogatories Set One, defendant has waived all objections to those interrogatories by failing to serve timely discovery responses, and has failed to show good cause to excuse that failure.*fn3 Within 10 days of the date of this order, defendant shall serve plaintiff with formal responses to plaintiff's Interrogatories Set One, without the assertion of any objections. Additionally, it shall be wholly insufficient for defendant to respond to these interrogatories by stating, as it did in the joint statement, that the documents already produced in this case are responsive to the interrogatories. A brief review of the subject interrogatories reflect that such a response is not supportable even without review of the already-produced documents. If defendant asserts such a response, the court may further sanction defendant and its counsel.

3. In regards to plaintiff's Requests for Production of Documents Sets One*fn4 and Two, defendant has waived all objections to those document requests by failing to serve timely discovery responses, and has failed to show good cause to excuse that failure.*fn5 Within 10 days of the date of this order, defendant shall serve plaintiff with formal responses to plaintiff's Requests for Production of Documents Sets One and Two, without the assertion of any objections. Defendant shall simultaneously serve all additional, responsive documents on plaintiff.*fn6

4. In regards to plaintiff's Requests for Admissions Set One, defendant has waived all objections to those requests for admission by failing to serve timely responses in nearly nine months.*fn7 The matters to which plaintiff's requests for admission are directed are deemed admitted by defendant.*fn8 Defendant may promptly file a motion for relief from the deemed admissions. In making such a motion, however, defendant must also demonstrate "good cause" to modify the scheduling order, see Fed. R. Civ. P. 16(b)(4); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609-10 (9th Cir. 1992), unless the parties agree to modify the scheduling order to permit the hearing of such a motion beyond the discovery completion deadline and the court approves that stipulation. Moreover, any such motion should address each request for admission individually in seeking to have the deemed admission withdrawn or amended.

5. As plaintiff conceded at the hearing, her motions to compel responses to her Requests for the Production of Documents Set Three and her request for entry on land to conduct three site inspections are not properly before the court because plaintiff's served those discovery requests after she filed her motion to compel.*fn9 As advised at the hearing, plaintiff must demonstrate "good cause" to modify the scheduling order if she files a motion to compel regarding this discovery, unless the parties agree to modify the scheduling order to permit the hearing of such motion beyond the discovery completion deadline and the court approves that stipulation.

6. Plaintiff's request to be permitted to make corrections to her deposition transcript is beyond the scope of the motion to compel because it was first raised in the joint statement, and plaintiff's deposition occurred after plaintiff filed her motion to compel.*fn10

However, in light of defendant's express lack of objection, plaintiff is granted two weeks from the date of this order to make corrections to her deposition transcript.

7. Plaintiff's request for a determination that defendant's 19 interrogatories and 28 requests for production exceed the number permitted under the Federal Rules of Civil Procedure is not properly before the court because plaintiff first raised the issue in the joint statement, and plaintiff has not filed a motion for a protective order.*fn11 If plaintiff intends to file a motion in regards to defendant's discovery requests, she must also demonstrate "good cause" to modify the scheduling order unless the parties agree to modify the scheduling order to permit the hearing of such motion beyond the discovery completion deadline and the court approves that stipulation.

8. Pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), plaintiff is entitled to the award of reasonable expenses incurred in bringing this motion to compel as to her Interrogatories Set One, Requests for the Production of Documents Sets One and Two, and Requests for Admissions. Because plaintiff is proceeding without an attorney, she may not collect attorney's fees,*fn12 and the undersigned denies plaintiff's request to compensate plaintiff for her expenses incurred in hiring a third party non-attorney to assist her in regards to discovery in this case. However, within seven days of the date of this order, plaintiff may file a declaration containing an itemized list of reasonable expenses (e.g., copying costs, facsimile charges, postage, etc.), including receipts where appropriate-that plaintiff incurred in filing the motion to compel and pursuing responses to her Interrogatories Set One, Requests for the Production of Documents Sets One and Two, and Requests for Admissions. Thereafter, the undersigned will address the possible awarding of expenses in a separate order.

IT IS SO ORDERED.


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