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Salazar v. Chipotle Mexican Grill, Inc.

United States District Court, E.D. California

April 21, 2017

ALICIA SALAZAR, Plaintiff,
v.
CHIPOTLE MEXICAN GRILL, INC., Defendant.

          ORDER AND ORDER TO SHOW CAUSE

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         Plaintiff Alicia Salazar initially commenced this wrongful termination action against defendant Chipotle Mexican Grill, Inc. in the Placer County Superior Court on January 7, 2016, and the case was subsequently removed to federal court on February 29, 2016. (ECF No. 1.) On May 3, 2016, the assigned district judge entered a pretrial scheduling order requiring all discovery to be completed by June 2, 2017. (ECF No. 10.)

         Presently pending before the court is defendant's motion to compel plaintiffs responses to defendant's requests for production of documents and special interrogatories, along with a request for sanctions. (ECF No. 12.) Plaintiff has opposed the motion, and defendant filed a reply brief. (ECF Nos. 14, 15.)[1]At the April 20, 2017 hearing on the motion, attorney Nima Darouian appeared on behalf of defendant, but there was no appearance by plaintiffs counsel. After carefully considering the court's record and the applicable law, the court GRANTS the motion. Additionally, plaintiffs counsel is ORDERED TO SHOW CAUSE as outlined below.

         BACKGROUND

         The background facts are largely undisputed. Since this action was removed to federal court, plaintiffs counsel of record has been Robert C. Bowman, Jr. with the Law Offices of Bowman and Associates. On January 19, 2017, defendant served plaintiff with requests for production of documents, special interrogatories, and requests for admission by overnight delivery. (Declaration of Nima Darouian, ECF No. 12-2 ["First Darouian Decl."] ¶ 2, Ex. A.) On February 9, 2017, one of the attorneys then associated with the Law Offices of Bowman and Associates, Vicky Cody, requested and obtained a two-week extension until March 7, 2017, to respond to the above-mentioned discovery requests. Ms. Cody explained that there had been a "disconnect" in her office, and that she had only learned that day of the discovery that had been sent to her office the previous month. (Id. ¶ 3, Ex. B.) However, no responses were ultimately received on March 7, 2017. (Id. ¶ 4.)

         During a March 13, 2017 phone call with Ms. Cody, Ms. Cody informed defendant's counsel that she was no longer associated with the Law Offices of Bowman and Associates, but would continue to represent plaintiff in this action. (First Darouian Dec. ¶ 4.) Ms. Cody also acknowledged that plaintiff had failed to timely respond to the discovery requests, but assured defendant's counsel that responses would be provided no later than March 17, 2017. (Id.) Based on that representation, and in the spirit of cooperation, defendant's counsel provided another extension to respond to the discovery by March 17, 2017. (Id.) However, no responses were ultimately received on March 17, 2017. (Id ¶ 5.)

         Subsequently, on March 27, 2017, defendant's counsel sent an e-mail to Ms. Cody as well as Mr. Bowman, indicating that discovery responses had still not been received, that the requests for admission were deemed admitted by operation of law, and that defendant intended to move forward with a motion to compel concerning the requests for production of documents and special interrogatories. (First Darouian Decl. ¶ 5, Ex. C.) The e-mail also noted Ms. Cody's representation that she, and not the Law Offices of Bowman and Associates, would continue to represent plaintiff in this action, but pointed out that no such designation had been filed with the court. (Id.)

         Although he was copied on the March 27, 2017 e-mail, Mr. Bowman did not respond to defendant's counsel's e-mail. (Declaration of Nima Darouian, ECF No. 15-1 ["Second Darouian Decl."] ¶ 3.) However, on March 28, 2017, Ms. Cody responded by e-mail, indicating that she had fallen ill and had somehow "conflated" the dates on which the discovery was due. (First Darouian Decl. ¶ 6, Ex. D; Second Darouian Decl. ¶ 3.) That same day, Ms. Cody and defendant's counsel had a telephone conference, in the course of which defendant's counsel explained that defendant would not be granting any further extensions of time and would deem the responses untimely. (First Darouian Decl. ¶ 7.) Ms. Cody indicated that she would still produce the discovery responses by March 29, 2017. (Id.) Nevertheless, no discovery responses were ultimately provided on March 29, 2017. (Id. ¶ 2.)

         Consequently, on April 5, 2017, defendant filed the instant motion to compel, representing that, as of the date of filing, no discovery responses had yet been provided. (ECF No. 12; First Darouian Decl. ¶ 2.) Along with plaintiffs subsequent opposition to this motion, plaintiff served responses to defendant's requests for admission, but no responses to the requests for production of documents or special interrogatories had been provided by the time of filing defendant's reply brief on April 17, 2017, at 10:53 a.m. (Declaration of Robert C. Bowman, Jr., ECF No. 14-1 ["Bowman Decl."] ¶ 6, Ex. 4; Second Darouian Decl. ¶ 2; ECF No. 15.) At the April 20, 2017 hearing, defendant's counsel candidly noted that plaintiff had finally served responses to the requests for production and special interrogatories on April 17, 2017, after defendant's reply brief was filed, although defendant's counsel expressed some concerns regarding the adequacy of those responses.

         DISCUSSION

         "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(a)(1). "A party seeking discovery may move for an order compelling an answer, designation, production, or inspection, " including when the other party "fails to answer an interrogatory submitted under Rule 33" or "fails to produce documents or fails to respond that inspection will be permitted - or fails to permit inspection - as requested under Rule 34." Fed.R.Civ.P. 37(a)(3)(B)(iii)-(iv).

         Here, there is no question that defendant is entitled to an order compelling responses to defendant's requests for production of documents and special interrogatories. Those discovery requests were properly propounded, responses were long overdue, and defendant's counsel first attempted in good faith to secure the responses without court intervention by virtue of written and telephonic communication with plaintiffs counsel, as outlined above. Even though plaintiff has now apparently provided responses after defendant's reply brief was filed, such responses are long overdue, and defendant is thus entitled to responses to those requests without objections. Additionally, defendant's counsel has expressed some preliminary concern regarding the adequacy of the responses served on April 17, 2017. Therefore, the court grants defendant's motion and directs that supplemental responses to the requests for production and special interrogatories be provided within fourteen (14) days of this order, with all objections (other than the attorney work product and attorney-client privileges) waived. To the extent that those privileges are asserted, the responses shall be accompanied by a detailed privilege log. In providing the supplemental responses, plaintiffs counsel is also strongly encouraged to take a hard look at the substance of plaintiff s responses in the interest of avoiding further motion practice and the potential imposition of further sanctions.[2]

         "If the motion is granted - or if the disclosure or requested discovery is provided after the motion was filed - the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees." Fed.R.Civ.P. 37(a)(5)(A). "But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust." Id. As noted above, the court finds that defendant's counsel had made good faith efforts to obtain the discovery responses informally prior to filing a motion to compel. Furthermore, after carefully reviewing plaintiffs opposition brief and accompanying documentation, the court cannot find that plaintiffs failure to ...


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