The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Previously pending on this court's law and motion calendar for May 24, 2012, was California Sportsfishing Protection Alliance's ("CalSpa") motion for order deeming admitted plaintiff's First Set of Requests for Admissions, and for sanctions, filed April 25, 2012. CalSpa was represented by Erik Roper. William Callaway appeared in pro se. Having reviewed the joint statement and heard oral argument, the court now issues the following order. BACKGROUND
This case is proceeding on the amended complaint, filed June 21, 2011. California Sportfishing Protection Alliance ("CalSpa") is proceeding as a "citizen enforcer," under the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., alleging that William Callaway, dba Paradise Ready Mix, Inc. is continuing to violate the terms of the National Pollutant Discharge Elimination System (NPDES) Permit based on storm water discharged to a "wash" at the border of the cement facility from Callaway's ready mix concrete facility in Paradise. In addition to these alleged violations, CalSpa further alleges that Callaway failed to implement the required Best Available Technology Economically Achievable ("BAT") for toxic and non-conventional pollutants, and Best Conventional Pollutant Control Technology ("BCT") for conventional pollutants, and that he failed to develop and implement an adequate Storm Water Pollution Prevention Plan and adequate Monitoring and Reporting Program. CalSpa seeks civil penalties, injunctive relief and costs.
I. Requests for Admissions
Defendant Callaway has a long history of delaying the discovery process in this case, and in particular the discovery at issue.
Plaintiff's first set of requests for admissions were served on Callaway on January 11, 2011.*fn1 Although Callaway did respond, the responses contained "myriad deficiencies and improprieties," according to plaintiff. (Dkt. no. 70 at 7.) On November 2, 2011, Callaway provided amended responses; however, as they were insufficient, on November 14, 2011, plaintiff moved to compel amended responses to these requests. (Dkt. no. 49.) The original hearing date of December 15, 2011 was continued a few times, and was finally heard on March 15, 2012. By orders filed March 16 and 20, 2012, Callaway was directed to respond to discovery, including CalSpa's First Set of Requests for Admissions, numbered 1-16, and 19-22. (Dkt. nos. 72, 74.) Callaway was admonished that his discovery efforts in this case up to that point were obfuscative.
[T]he court finds that all responses are evasive and intended to not convey any substantive information. The myriad, boilerplate objections based on Callaway's self-incrimination contention has been found to be without merit. United States v. Ward, supra. Moreover, the tedious and near universal protestations that the terms used by CalSpa are not understandable to Callaway, fail to take into account the express definitions given to those words, or are simply, for the most part, designed to stall discovery. Callaway has not exercised the diligence necessary to be able to state with credibility that he has investigated the factual aspects of the discovery request at issue, but that after exercising that diligence, he either does not know the answer or only can maintain a partial answer.
Order, March 20, 2012 at 18.
At that time, Callaway was warned that "failure to properly respond to the discovery requested would result in sanctions, including the possibility of some or all admissions being deemed admitted. (Dkt. no. 72.) After Callaway filed objections and they were considered, the court extended Callaway's deadline to respond from March 31 to April 20, 2012. Despite being contacted by CalSpa, Callaway still did not produce any further responses in a separate pleading.
Calspa now seeks to deem all requests for admission admitted, even though the previous motion concerning the requests for admissions concerned only requests for admissions numbered 1-16 and 19-22. (Dkt. nos. 68 at 51-52, 72.) CalSpa asserts that since the court previously warned plaintiff that failure to properly respond would result in some or all admissions being deemed admitted, and Callaway has failed to produce any amended responses, they should all be deemed admitted. CalSpa also seeks fees and costs incurred in bringing this motion.
Callaway argues in his portion of the joint statement many things, the least of which is any opposition to the motion to compel. He spends much of his brief arguing the merits of the case, including the facts of why he has had nothing to do with the property at issue since the end of 2010.*fn2 He also explains his failure to respond to the court's order by stating that he is still recovering from hip surgery.*fn3
In finally responding to the motion, Callaway argues that he has a Fifth Amendment right to remain silent "when any admission is clearly intended to be used to prosecute the Defendant." (Dkt. no. 83:4.) He also repeats a few of the same incorrect arguments he has previously asserted, including that the statute is penal in nature and a warrant based on probable cause is required for searches such as plaintiff conducts.
Also buried within the Joint Statement are Callaway's "Second Amended Answers," which appear to be responses to RFAs numbered 1-9, and 23-35,*fn4 which are less than ...