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 March 14, 2013, were two motions to compel discovery and for sanctions, filed by defendants on February 5 and 15, 2013. Monica Scott appeared for defendants. Russell Robinson appeared for plaintiffs. Plaintiffs did not participate in the joint statement process; therefore, defendants filed a declaration on March 7, 2013. Having reviewed the declaration and heard oral argument, the court now issues the following order.
This case concerns plaintiffs' ownership of an auto body repair shop that did business for defendants' insureds. They allege that defendants, who are Caucasian, discriminated against them as African-Americans, under 42 U.S.C. § 1981 by awarding the COD (Circle of Dependability) designation to another repair facility in 2009 and removing them from the COD program in 2011. The complaint also contains claims of breach of contract, breach of implied covenant of good faith and fair dealing, negligence, breach of fiduciary duty, and unlawful misrepresentations in violation of Business and Professions Code § 17200. Plaintiffs seek damages.
I. Motion to Compel Responses to Bailey's Second Set of Interrogatories (Doc. nos. 53, 55) Defendant Bailey served a second set of interrogatories to plaintiffs on December 17, 2012. Plaintiffs provided no responses and did not seek an extension of time in which to serve them. Defendants filed a motion rather than a joint statement in regard to this set of discovery pursuant to E.D. Local Rule 251(e), because plaintiffs utterly failed to respond.*fn1
Plaintiffs filed no response to this motion. Defendants request an order that these responses be served immediately and that all objections be deemed waived. Plaintiffs represented at hearing that they do not object to producing this discovery.
II. Motion to Compel Supplemental Responses (Doc. no. 60)
Because plaintiffs filed nothing in regard to defendants' motions, this background
is taken from plaintiffs' recitation of the facts. Defendants set forth an over four month period of time in which plaintiffs delayed and foot dragged with their discovery responses, and when they finally did produce responses, they did so in dribs and drabs.
The discovery at issue was served on plaintiffs on October 2, 2012, and included
(1) Farmers Insurance Exchange's ("FIE") First Set of Requests for Production, Interrogatories, and Requests for Admission on plaintiff TJ Enterprises; (2) Bruce Bailey's First Set of Interrogatories on plaintiff TJ Enterprises; and (3) defendant Truck Insurance Exchange's ("Truck") First Set of Interrogatories on TJ Enterprises. Plaintiffs did not respond to this discovery, so defendants followed up with emails to plaintiffs on November 1, 2, 5, 6, and 7, 2012. Plaintiffs' counsel responded that the responses were sent by U.S. mail on November 1, 2012, so on three occasions defendants requested courtesy copies but plaintiffs' counsel did not provide electronic courtesy copies prior to November 30, 2012. Plaintiffs responded substantively to only a handful of discovery. On December 4, 2012, defendants agreed to provide supplemental responses by December 7 and 14, 2012. Plaintiffs did provide some responses on December 7, 2012, but no documents regarding plaintiffs' damages claims were produced. On December 17, 2012, plaintiffs' counsel conveyed that plaintiffs' daughter and grandchildren had been burned out of their home, but supplemental responses would be served later that week. They were not served, despite repeated phone calls and emails by defense counsel. Plaintiffs' counsel promised he would personally serve responses. On January 18, 2013, plaintiffs finally served spreadsheets concerning their damages claim, but they were not accompanied by supporting documentation. Plaintiffs produced a few more documents at the January 25, 2013 deposition of plaintiff Emma Jackson.*fn2 On January 25, 2013, plaintiffs' counsel again agreed to provide supplemental responses by February 1, but did not do so. On February 7, 2013, plaintiffs' counsel sent three years of corporate tax returns but they did not include worksheets or schedules. Ms. Scott's declaration describes Mr. Robinson's responses to her inquiries as to the status of the discovery, that he was always going to send them by a date certain, but they never arrived.
On February 8, 2013, defendants sent their draft joint statement to plaintiffs for insertion of their arguments. Defendants followed up by contacting plaintiffs several times, including February 11, 14, 26, 27, and March 4. Plaintiffs' counsel responded that he had "lots to do" and on February 27 stated that he was working on it "right now." Defendants never received plaintiffs' inserts.
As with their responses to Bailey's Second Set of Interrogatories, plaintiffs' counsel indicated at hearing that they had no objection to producing all of the requested discovery.
Defendants seek Rule 37(d) (1)(ii) sanctions in the amount of $4,575.20 for fees and costs incurred in connection with bringing the motions to compel.
Under Fed. R. Civ. P. 37 (a) (5) and (b)(2)(C), the court is required to impose monetary sanctions on the disobedient party unless the court finds that the party's failure was substantially justified or that other circumstances make an award of expenses unjust. "[I]f a failure to comply has occurred, it becomes incumbent upon the disobedient party to show that his failure is justified or that special circumstances would make an award of expenses unjust. Notes of the Advisory Committee on Rule 37." David v. Hooker, 560 F.2d 412, 419 (9th Cir. 1977).
At the hearing, Mr. Robinson had the gall to declare to the court that he participated in the joint statement and thought he had submitted it, but when caught he backtracked and stated only that he did "work on" his portion of the statement. He then explained that his clients have had personal problems, including TJ Jackson's hospitalization for almost a month, a fire which burned down one of plaintiffs' residences, and the death of plaintiffs' brother last October, and therefore it has been difficult to obtain documents from his clients.
Defense counsel, on the other hand, stated at hearing that she had not heard of some of these personal excuses before now, and that counsel has been unresponsive to her numerous emails as she outlined in her declaration. When she has talked to Mr. Robinson in person, she has offered to work with him if he is having problems producing the discovery, but he has not responded to this offer. Ms. Scott pointed out that at plaintiffs' depositions, it was quite clear that they were not aware of much of the discovery, that they were supposed to be collecting documents, ...