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Hartline v. National University

United States District Court, E.D. California

February 22, 2018




         This matter is before the court on defendant's motion to compel. This discovery motion was referred to the undersigned pursuant to E.D. Cal. R. 302(c)(1). This matter is also referred to the undersigned because plaintiff brings this action in pro se. E.D. Cal. R. 302(c)(21). Plaintiff and defendant were scheduled to attend a hearing on February 21, 2018 at 10:00 a.m. Defendant appeared by telephone, but plaintiff failed to appear. ECF No. 104. For the reasons stated below, defendant's motion is GRANTED.

         I. Relevant Background

         Because plaintiff's diligence is at issue, the court recites the procedural history of the case in some detail. Plaintiff filed this action on March 7, 2014 alleging that he faced various forms of discrimination on the basis of his disability while a student of defendant, National University. ECF No. 1 at 21-22. Defendant filed a motion to dismiss on August 4, 2014. ECF No. 7. Plaintiff requested a 120-day stay of the case, which the court granted in part by providing plaintiff additional time to respond to defendant's motion to dismiss. ECF Nos. 11, 13. Plaintiff made a second request for additional time, which the court granted in part. ECF Nos. 14, 15. Plaintiff's initial complaint was dismissed on January 23, 2015, and plaintiff was given an opportunity to file an amended complaint. ECF No. 24.

         After requesting and receiving an extension of time (ECF Nos. 27, 28), plaintiff filed a first amended complaint on April 24, 2015. ECF No. 29. Defendant filed a second motion to dismiss on May 14, 2015. ECF No. 32. After a briefing period that included a request for an extension of time (ECF No. 36), which the court denied insofar as it requested to move the hearing date of defendant's motion (ECF No. 40), the undersigned recommended defendant's motion to dismiss be granted with partial leave to amend. ECF No. 43. Plaintiff requested and received an extension of time to object to the undersigned's findings and recommendations. ECF Nos. 44, 45. Following the extended objections period, the district judge adopted in full the undersigned's findings and recommendations on February 4, 2016. ECF No. 55.

         Plaintiff sought and received, to a lesser degree than requested, an extension of time to file his second amended complaint. ECF Nos. 56, 59, 61. Plaintiff filed his second amended complaint (“SAC”) on April 4, 2016. ECF No. 63. Defendant again moved to dismiss. ECF No. 66. Plaintiff requested and received an extension of time to respond to defendant's motion. ECF Nos. 67, 68. On August 18, 2016, the undersigned recommended denial of defendant's motion to dismiss (ECF No. 74), and this recommendation was adopted in full on March 2, 2017. ECF No. 83. On April 25, 2017 defendant filed an answer to plaintiff's SAC, which remains the operative complaint. ECF No. 84. On May 18, 2018, following a status conference at which plaintiff and defendant were both present (ECF No. 88), the undersigned issued the pretrial scheduling order in this case. ECF No. 89. The scheduling order set December 27, 2017 as the date for close of discovery, and March 4, 2019 as the date for a jury trial. Id. at 8.

         Plaintiff was served with requests for production (“RFPs”), special interrogatories, and a deposition notice for a December 15, 2017 deposition on October 5, 2017. Declaration of Evan A. Peña (Peña Decl.) at ¶ 2, Exh. A-B.[1] Plaintiff's responses to the RFPs were due November 8, 2017. See, Fed.R.Civ.P. 26(b)(2), 34(b)(2)(A). No response was timely received. Peña Decl. at ¶ 3. On November 15, 2017, plaintiff filed a motion to stay this case, citing general health concerns and a potential surgery occurring in January of 2018. ECF No. 93. The court denied plaintiff's motion to stay, but provided for an extension of the discovery deadlines in light of plaintiff's potential surgery. ECF No. 99 at 2. The court stated that “plaintiff's general medical issues have been in existence since before this case began and do not justify a stay of the entire case.” Id. (citing ECF No. 93 at 1, which noted Mr. Hartline's health problems have been an issue since 2011). The court set several new pre-trial deadlines, including a new discovery deadline of March 7, 2018. Id. While the motion to stay was pending, defendant notified plaintiff that it was taking his deposition off calendar, but would later serve an amended deposition notice. Peña Decl. at Exh. D.

         Following the court's order denying a stay but extending discovery deadlines, defendant sent plaintiff an amended deposition notice setting his deposition for January 17, 2018. Peña Decl. at ¶ 5. Defendant also requested that plaintiff respond to the pending discovery requests by January 10, 2018 so that defendant could review the documents in advance of plaintiff's deposition. Id. at Exh. E (December 21, 2017 Letter). On January 10, defendant called plaintiff because plaintiff had not responded to any discovery requests. Id. at ¶ 6. During the conversation, plaintiff stated he could not appear at his January 17, 2018 deposition, and that he would like to revisit the issue in a few weeks. Id. Defendant followed up with a letter stating, pursuant to the court's revised discovery schedule, it could take plaintiff's deposition on or before January 24, 2018, but no later. Id. at Exh. F (January 11, 2018 Letter). Again, defendant requested responses to pending discovery before plaintiff's deposition. Id.

         Plaintiff did not produce documents or indicate when he could appear for his deposition following the January 11, 2018 letter, so defendant reached out again by phone on January 16, 2018. Peña Decl. at ¶ 7. This time, plaintiff agreed to appear for a deposition on January 24, 2018. Id. Plaintiff asked defendant to provide copies of the discovery originally served in October. Id. Defendant sent plaintiff a letter on January 17, 2018 including an amended deposition notice and copies of the pending discovery requests. Id. at Exh. G (January 17, 2018 Letter). Plaintiff appeared for his deposition on January 24, 2018, bringing with him some documents he believed were responsive to defendant's RFPs. Peña Decl. at ¶ 8.

         During plaintiff's deposition, he testified that he keeps a calendar which likely lists dates relevant to his studies at National University and his medical treatment. Peña Decl. at Exh. H (Hartline Deposition), at 191:8-20, 219:21-220:7. Plaintiff did not bring a copy of the calendar to the deposition but stated he would provide defendant a copy. Id. at 191:23-25, 220:22-221:25. Plaintiff testified that he provided defendant medical records shortly after he enrolled, but that the university lost the records. Id. at 41:11-18, 43:6-19. Defendant also testified that his disability consists of injuries to his spine, knees, right leg and food, and a stroke he suffered in 2011, around the time that National University arranged two student teaching placements for him. Id. at 28:13-24, 41:11-18, 43:6-19, 141:5-14.

         Following the deposition, defendant sent a letter to plaintiff explaining how documents plaintiff described in his deposition were responsive to outstanding discovery requests. Peña Decl. at Exh. I (January 30, 2018 Letter). On February 5, 2018, plaintiff notified defendant that he sent the calendar and medical records described above, along with other documents. Peña Decl. at ¶ 11. Defendant received the documents on February 13, 2018. Id. Although plaintiff was enrolled at National University for more than four years, plaintiff only produced three months of his calendar (August through October 2011) and 12 pages of medical records (including only two appointments that took place during his enrollment at National University). Id. Defendant promptly contacted plaintiff, who confirmed that he likely has a more extensive calendar and other medical records, but stated he has not produced them because he has not searched all of the boxes where he stores documents. Id.

         At the hearing on February 21, 2018, counsel notified the court that plaintiff had sent a third production of documents to defendant. However, defendant stated that the third production did not address any concerns presented by the pending motion to compel, as it was largely duplicative of previous productions.

         II. Motion

         Defendant asks the court to compel responses to five requests for production: RFP Nos. 1, 10, 11, 12, and 31. ECF No. 103 at 3. Plaintiff did not contribute to the “joint statement” filed by the defendant in accordance with E.D. Cal. Rule 251(c). Defendant stated that counsel contacted plaintiff multiple times in an effort to obtain plaintiff's contribution to the statement and sent him a draft for his additions, but as of ...

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