United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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
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 ...