United States District Court, E.D. California
ORDER GRANTING DEFENDANTS' MOTION TO COMPEL
PLAINTIFF'S DEPOSITION AND RESPONSE TO WRITTEN DISCOVERY
REQUESTS (DOC. 38) ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT
BE DISMISSED FOR PLAINTIFF'S FAILURE TO PROSECUTE 21-DAY
K. OBERTO UNITED STATES MAGISTRATE JUDGE
to Federal Rule of Civil Procedure 37(a) and Local Rule
230(1), Defendants Chen and Soa move for an order compelling
Plaintiff to respond to Defendants' interrogatories, set
one; requests for production of documents, set one; and
requests for admissions, set one. (Doc. 38 at 1.) Defendants
propounded the discovery requests on August 9, 2019, and to
date, Plaintiff has not responded to any of the requests.
(Id. at 7.) Defendants further move for an order
compelling Plaintiff to appear for his deposition.
(Id. at 2.) Plaintiff failed to appear for his duly
noticed deposition on October 15, 2019. (Id. at 8.)
alternative, Defendants move for an order dismissing this
action. (Id. at 2.) According to Defendants'
counsel, Plaintiff was paroled from Kern Valley State Prison
on May 17, 2019, and has failed to update his address with
the Court and to respond to any communications from
Defendants. (Id. at 7.)
has not filed any opposition or a statement of non-opposition
to Defendants' motion; and, the time to do so has passed.
Local Rule 230(1). The Court thus deems the motion submitted.
For the reasons set forth below, the Court
GRANTS Defendants' motion to compel,
(Doc. 38). In addition, the Court ORDERS
Plaintiff to show cause why this action should not be
dismissed for his failure to prosecute.
DEFENDANTS' MOTION TO COMPEL
may seek “discovery regarding any nonprivileged matter
that is relevant to any party's claim or defense and
proportional to the needs of the case….”
Fed.R.Civ.P. 26(b)(1). Information “need not be
admissible in evidence to be discoverable.”
Id. Within the scope of Rule 26(b), a party may
serve on any other party interrogatories and requests to
admit the truth of any matter. Fed.R.Civ.P. 33(a), 36(a). In
response to each interrogatory, the responding party must
answer fully or state with specificity the grounds for
objecting thereto. Fed.R.Civ.P. 33(b). In response to each
admission request, the responding party must either admit or
deny the matter, state in detail why the matter cannot be
admitted or denied, or state the grounds for objecting
thereto. Fed.R.Civ.P. 36(a).
a party may serve a request to produce documents,
electronically stored information, or tangible things that
are in the responding party's possession, custody, or
control. Fed.R.Civ.P. 34(a)(1). “Property is deemed
within a party's ‘possession, custody, or
control' if the party has actual possession, custody, or
control thereof or the legal right to obtain the property on
demand. Allen v. Woodford, No.
1:05-cv-01104-OWW-LJO, 2007 WL 309945, at *2 (E.D. Cal. 2007)
(citation omitted). In response to each request, the
responding party must state that it will produce the
requested documents, information, or things, or the party
must “state with specificity the grounds for objecting
to the request.” Fed.R.Civ.P. 34(b)(2)(B).
a party may, by oral questions, depose another party if he
provides the deponent with adequate advance notice.
Fed.R.Civ.P. 30(a)-(b). Such notice “may be accompanied
by a request under Rule 34 to produce documents and tangible
things at the deposition.” Fed.R.Civ.P. 30(b)(2).
party fails to answer interrogatories or produce documents as
requested, the party seeking discovery may file a motion with
the Court to compel the answers or production. Fed.R.Civ.P.
37(a)(3)(B). In addition, if a party fails to attend his
deposition, the deposing party may move the Court for
sanctions against the party she seeks to depose. Fed.R.Civ.P.
37(d)(1)(A)(i). In general, the moving party must certify
that she has conferred or attempted to confer in good faith
with the responding party to resolve the dispute without
court action. Fed.R.Civ.P. 37(a)(1), 37(d)(2)(B); Local Rule
251(b). However, in prisoner cases involving pro se
plaintiffs, the meet-and-confer requirements of Rule 37 and
Local Rule 251 do not apply, though they are still
encouraged. (See Doc. 37 at 2.)
has neglected to respond to all of Defendant's written
discovery requests. (Doc. 38 at 5, 7.) Under the Federal
Rules, Plaintiff must respond to each interrogatory and
request for production or admission. If Plaintiff objects to
an interrogatory or request, he must state with specificity
the grounds for the objection. Fed.R.Civ.P. 33(b)(4),
34(b)(2)(B), 36(a)(5). If he does not have documents
responsive to a production request, or if requested documents
do not exist, Plaintiff must state so with enough specificity
to allow the Court to evaluate the merit of the response or
whether Plaintiff has made a reasonable inquiry. See
Ochotorena v. Adams, No. 1:05-cv-01524-LJO-DLB, 2010 WL
1035774, at *4 (E.D. Cal. 2010); Uribe v. McKesson,
No. 1:08-cv-01285-DSM-NLS, 2010 WL 892093, at *3 (E.D. Cal.
without explanation, also failed to appear for his deposition
on October 15, 2019. (Doc. 38 at 5, 7-8.) Under the Federal
Rules and Court order, Defendants have the right to depose
Plaintiff by video or in person. (See Doc. 3 at 2.)
Defendants served Plaintiff a notice of the deposition on
September 27, 2019, (see Doc. 38 at 7, 11-13), which
is more than the amount of time required by the Court.
(See Doc. 3 at 2.) Although not required, Defendants
served the notice at both Plaintiff's address of record
with the Court, as well as at the address provided by
Plaintiff's parole officer. (Doc. 35 at 7.) The Court
orders Plaintiff to appear for his deposition, at a time
agreed upon with Defendants, within 21 days from the date of
service of this order.
ORDER TO SHOW CAUSE
pro se plaintiff must keep the Court and opposing
parties informed of his correct address. Local Rules 182(f),
183(b). If a party moves without filing and serving a notice
of change of address, documents served at the party's old
address of record shall be deemed received even if not
actually received. Local Rule 182(f). If mail directed to a
pro se plaintiff at the address of record is
returned by the U.S. Postal Service, and the plaintiff fails
to notify the ...