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Jessop v. City of Fresno

United States District Court, E.D. California

August 4, 2016

MICAH JESSOP, et al., Plaintiffs,
v.
CITY OF FRESNO, et al., Defendants.

          ORDER GRANTING IN PART DEFENDANT CITY OF FRESNO’S MOTION TO COMPEL AND REQUEST FOR ATTORNEY’S FEES (ECF NOS. 32, 33, 34, 35, 37, 38, 39)

         On June 22, 2016, Defendant City of Fresno (“Defendant Fresno”) filed a motion to compel further responses to special interrogatories and request for production of documents from Plaintiffs Micah Jessop (“Plaintiff Jessop”) and Brittan Ashjian (“Plaintiff Ashjian”). (ECF No. 32.) Defendant Fresno also requested monetary sanctions in the amount of $2, 220.00, which represents the fees and costs associated with bringing and presenting the motion to compel. (ECF No. 32.)

         On July 13, 2016, Defendant Fresno filed a reply to non-opposition of the motion to compel. (ECF No. 34.) On July 13, 2016, Defendant Fresno’s counsel, Allen Christiansen, filed a declaration pursuant to Local Rule 251(d) that was intended to supplement his June 21, 2016 Local Rule 251(d) declaration. (ECF No. 34-1.) On July 13, 2016, Plaintiffs filed an objection to Defendant Fresno’s motion to compel and requested that the motion be taken off calendar. (ECF No. 35.)

         The hearing was originally scheduled for July 20, 2016, but was continued to August 3, 2016. On July 26, 2016, the parties filed a joint statement. (ECF No. 37.) On July 28, 2016, Defendant Fresno filed a supplement regarding Plaintiffs’ amended responses to Defendant Fresno’s discovery requests. (ECF No. 38.) On July 29, 2016, Plaintiffs filed objections to Defendant Fresno’s supplement. (ECF No. 39.) The Court considers Defendant Fresno’s July 28, 2016 supplement, which includes Plaintiffs’ amended responses, and Plaintiff’s July 29, 2016 objections.

         The hearing on the motion to compel took place on August 3, 2016. Kevin Little appeared on behalf of Plaintiffs. Allen Christiansen appeared telephonically on behalf of Defendant Fresno. For the reasons set forth below, Defendant Fresno’s motion to compel is granted in part and request for attorney’s fees is granted in part.

         I.

         BACKGROUND

         Plaintiffs allege that Defendants violated their constitutional rights in connection with the seizure and theft of $101, 380 of United States currency and rare coins valued at approximately $125, 000. Defendants Kumagai, Cantu, Chastain, Dodd, Reynolds, Zarausa, Arrellanes, Garza, Bunch, and Fry (“Defendant Officers”) were Fresno Police Officers who were acting within the course and scope of their duties as police officers for the Fresno Police Department. Defendant Fresno employed Defendant Officers.

         Plaintiffs are owners of Automated Teller Machines (“ATMs”) in the Central Valley in California. Plaintiffs keep large sums of cash at their business and homes in order to restock their ATMs. On September 10, 2013, Defendant Officers conducted a raid pursuant to a search warrant at Plaintiff Jessop’s residence and at Plaintiffs’ business. Defendant Officers seized approximately $131, 380 in United States currency from Plaintiffs’ business location. Defendant Officers seized an additional $20, 000 in United States currency and rare coins valued at $125, 000 from Plaintiff Jessop’s residence.

         On September 11, 2013, Plaintiffs along with their retained counsel met with Defendant Kumagai and an attorney from the Fresno City Attorney’s Office to view the currency that was seized pursuant to the search warrant. Plaintiffs were informed that $50, 000 in currency was seized. Plaintiffs complained that more currency was seized than what was in the property room, but Defendants still informed Plaintiffs that only $50, 000 was seized and no coins were seized. Plaintiffs then conducted an accounting of all of their funds and discovered that $81, 380 was missing, excluding the $20, 000 in currency and rare coins seized from Plaintiff Jessop’s home.

         Plaintiffs bring four claims for relief: unreasonable search and seizure of property against all Defendants except Defendant Fresno; deprivation of property without due process against all Defendants except Defendant Fresno; substantive due process violation against all Defendants except Defendant Fresno; and municipal liability for unconstitutional custom or policy against Defendant Fresno.

         II.

         LEGAL STANDARD

         Motions to compel are governed by Federal Rule of Civil Procedure 37, which states, in pertinent part:

(a) Motion for an Order Compelling Disclosure or Discovery. (1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.

Fed. R. Civ. P. 37.

         Rule 37 states that “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed.R.Civ.P. 37(a)(4). Rule 37 also provides that attorney’s fees must be awarded to the party that prevails on a motion to compel or the party who successfully opposes a motion to compel. Fed.R.Civ.P. 37(a)(5). If the motion to compel is granted in part and denied in part, the Court has discretion to apportion the reasonable expenses for the motion. Fed.R.Civ.P. 37(a)(5)(C).

         The Federal Rules of Civil Procedure provide that a party “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed.R.Civ.P. 26(b)(1). “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed.R.Evid. 401.

         Rule 34 of the Federal Rule of Civil Procedure provides that a party may serve upon any other party a request for production of any tangible thing within the party’s possession, custody, and control that is within the scope of Rule 26. Fed.R.Civ.P. 34(a)(1)(B). The party receiving the request has thirty days in which to respond. Fed.R.Civ.P. 34(b)(2). A party may move for an order compelling production where the opposing party fails to produce documents as requested under Rule 34. Fed.R.Civ.P. 37(a)(3(B)(iv).

         III.

         DISCUSSION

         In this instance, the parties are disputing whether Plaintiffs should have to produce personal Federal and State tax returns, business Federal and State tax returns, and personal banking records. The parties also dispute whether Plaintiffs should have to provide their personal bank account information for any accounts that they held between 2008 and 2014. It appears that the parties almost had an agreement at the meet and confer that would have mooted the need for the instant motion to compel, or at least most of it. Defendant Fresno asserts that the parties’ agreement at the meet and confer was to produce records for the 5 years up to 2013 based upon the representation of Mr. Little that there were no records available prior to that time period. As Defendant Fresno has agreed to limit requests for personal and business financial information to 5 years prior to and including 2013, the Court only considers Defendant Fresno’s request for personal and business banking and tax returns for the 5 years prior to and including 2013.

         Defendant Fresno originally also sought to compel additional responses to Request for Production Nos. 10 and 12 to Jessop and Special Interrogatory No. 10 to Jessop and No. 5 to Ashjian. However, based on Plaintiffs’ amended responses to these requests, Defendant Fresno states that these responses are now sufficient.

         A. Requests for Production and Special Interrogatories

         Request for Production No. 5 to Plaintiff Jessop and No. 1 to Plaintiff Ashjian states:

Produce any and all of YOUR personal Federal and State tax returns for 2013 and the seven (7) years immediately preceding 2013.
Plaintiff Jessop’s Amended Response:
Plaintiff objects to this request as being irrelevant. Plaintiff objects to this request as seeking information which is not reasonably calculated to lead to Discovery of admissible evidence. Plaintiff objects that this request violates the right to privacy. Plaintiff additionally objects that ...

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