The opinion of the court was delivered by: Karen S. Crawford United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' EX PARTE MOTION TO COMPEL
Before the Court is an Ex Parte Motion to Compel filed by defendants seeking a Court Order that: (1) requires plaintiff to provide complete responses to interrogatories; (2) allows defendants to exceed the twenty-five interrogatory limit in Federal Rule of Civil Procedure 33(a)(1) if the Court deems their interrogatories to include discrete subparts; and (3) precludes plaintiff from presenting at trial any witness or document that was not disclosed pursuant to this Court's Order requiring the parties to complete initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1)(AD) on or before December 3, 2012.
Defendants' Motion was filed on an ex parte basis, because plaintiff did not timely participate in the preparation of a Joint Motion as required by Chambers Rules. Defendants' counsel sent a proposed Joint Motion to plaintiff's counsel by e-mail on March 2, 2013. As of March 13, 2012, defense counsel had not received a response to the proposed Joint Motion from plaintiff's counsel. In addition, plaintiff did not timely oppose the Ex Parte Motion as required by Chambers Rules and did not contact the Court for an extension of time to respond.
For the reasons outlined more fully below, the Court finds that defendants' unopposed Ex Parte Motion to Compel must be GRANTED in part and DENIED in part.
On July 24, 2012, plaintiff filed a Complaint against the City of San Diego, the City's Chief of Police, and a peace officer alleging nine causes of action for:
(1) violation of civil rights based on the use of excessive force, false arrest, retaliation, and conspiracy (42 U.S.C. § 1983); (2) unlawful custom and practice (42 U.S.C. § 1983); (3) assault and battery; (4) false arrest; (5) conspiracy; (6) intentional infliction of emotional distress; (7) negligence; (8) negligent employment; and (9) violation of civil rights based on California law. The Complaint generally alleges that police acted improperly on July 1, 2011 during a checkpoint set up to determine whether drivers were operating vehicles while under the influence of alcohol or drugs. [Doc. No. 1.]
On October 24, 2012, the Court issued an Order requiring the parties to comply with the initial disclosure requirements in Federal Rule of Procedure 26(a)(1)(A)-(D) on or before December 3, 2012. [Doc. No. 16, at p. 2.] On January 8, 2013, after a Case Management Conference with the attorneys of record, the Court issued a Scheduling Order Regulating Discovery and Other Pre-Trial Proceedings. [Doc. No. 19.] The Scheduling Order states that: "All fact discovery shall be completed by all parties on or before April 26, 2013." [Doc. No. 19, at p. 1.]
Defendants' Ex Parte Motion to Compel states that plaintiff failed to meet the Court's deadline of December 3, 2012 for completing initial disclosures. In addition, plaintiff had not served defendant with any of the required initial disclosures as of March 25, 2013, the date defendants filed their Ex Parte Motion to Compel. As a result, defendants seek an Order from this Court precluding plaintiff from relying at trial on any witnesses and/or documents that were not disclosed as required by the Court's Order of October 24, 2012 and Rule 26(a)(1)(A)-(D).
"If a party fails to provide information or identify a witness as required by Rule 26(a) or (3), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or harmless." Fed.R.Civ.P. 37(c)(1). "[T]he burden is on the party facing sanctions to prove harmlessness." Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001). District Courts have "particularly wide latitude" to impose sanctions under Rule 37(c)(1). Id. at 1107. "The Advisory Committee Notes describe [the sanctions in Rule 37(c)(1)] as a 'self-executing,' 'automatic' sanction to 'provide[ ] a strong inducement for disclosure of material. . . . .' Fed.R.Civ.P 37 advisory committee's note (1993)." Id. at 1106. "Courts have upheld the use of the sanction even when a litigant's entire cause of action or defense has been precluded." Id.
To the extent it seeks an order excluding evidence at trial, defendants' Ex Parte Motion does not raise a discovery dispute. Rather, preclusion sanctions under Rule 37(c)(1) are more properly addressed in a Motion in Limine before the District Court at the time of trial. See, e.g., Hoffman v. Construction Prot. Serv., 541 F.3d 1175, 1179 (9th Cir. 2008). Although defendants' request is well-founded, this Court finds that defendants' Ex Parte Motion to Compel must be DENIED without prejudice to the extent it seeks an order precluding plaintiff from presenting at trial any witness or document that was not disclosed pursuant to Federal Rule of Civil Procedure 26(a)(1)(A-D).
Sanctions, including dismissal and entry of judgment, can also be imposed by the District Court under Federal Rule of Civil Procedure 37 if a party does not participate in the discovery process or adhere to dates in a scheduling order, such as the deadline for completing initial disclosures. Dreith v. Nu Image, Inc., 648 F.3d 779, 787 (9th Cir. 2011). However, "dismissal is a harsh penalty imposed only in extreme circumstances." Id. at 788. A District Court must weigh the ...