United States District Court, E.D. California
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,
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.)
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.)
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.
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.
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.
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.
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
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.
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
Fed. R. Civ. P. 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).
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.
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).
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.
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.
Requests for Production and Special Interrogatories
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
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