(PC) Falls v. Arredondo ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID FALLS, Case No. 1:19-cv-00441-NONE-JLT (PC) 12 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION TO COMPEL RESPONSES TO 13 v. REQUESTS FOR PRODUCTION OF DOCUMENTS AND DIRECTING 14 A. ARREDONDO, PLAINTIFF TO SHOW CAUSE WHY EXPENSES SHOULD NOT BE IMPOSED 15 Defendant. (Doc. 43) 16 17 Defendant moves to compel Plaintiff’s responses to his First Set of Requests for 18 Production of Documents, pursuant to Federal Rule of Civil Procedure 37(a)(3)(B)(iv), and he 19 requests reasonable expenses in bringing this motion. (Doc. 43.) Plaintiff has not filed an 20 opposition or a statement of non-opposition to the motion, and the time to do so has passed. See 21 Local Rule 230(l). For the reasons set forth below, the Court grants Defendant’s motion to 22 compel and orders Plaintiff to show cause why an award of expenses should not be imposed. 23 I. DISCUSSION 24 A. Motion to Compel Production 25 Parties may seek “discovery regarding any nonprivileged matter that is relevant to any 26 party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). 27 Within the scope of Rule 26(b), a party may serve on any other party a request to produce documents, electronically stored information, or tangible things that are in the responding party’s 1 possession, custody, or control. Fed. R. Civ. P. 34(a)(1). “Property is deemed within a party’s 2 ‘possession, custody, or control’ if the party has actual possession, custody, or control thereof or 3 the legal right to obtain the property on demand.” Allen v. Woodford, No. 1:05-cv-01104-OWW- 4 LJO, 2007 WL 309945, at *2 (E.D. Cal. 2007) (citation omitted). In response to each request, the 5 responding party must state that it will produce the requested documents, information, or things, 6 or it must “state with specificity the grounds for objecting to the request, including the reasons.” 7 Fed. R. Civ. P. 34(b)(2)(B). 8 If a party fails to produce requested documents, the party who made the requests may file 9 a motion with the Court to compel production. Fed. R. Civ. P. 37(a)(3)(B). Generally, the moving 10 party must certify that it has conferred or attempted to confer in good faith with the responding 11 party to resolve the dispute without court action. Fed. R. Civ. P. 37(a)(1); Local Rule 251(b). 12 However, in prisoner cases involving pro se plaintiffs, the meet-and-confer requirements of Rule 13 37 and Local Rule 251 do not apply, though they are still encouraged. (See Doc. 38 at 2.) 14 Plaintiff has neglected to respond to Defendant’s First Set of Requests for Production of 15 Documents, which includes only two requests. (Doc. 43-1 at 4; Whisnand Decl. ¶¶ 4-6, Doc. 43-2 16 at 2.) After Defendant filed the instant motion, Plaintiff filed declarations that appear to be 17 responsive to Request No. 1 of the set. (Compare Doc. 43-2 at 19 with Doc. No. 44.) As an initial 18 matter, the declarations should not have been filed with the Court, but instead served directly on 19 Defendant in response to his requests for production. (See Doc. 2 at 3, 4.) In addition, Plaintiff 20 does not indicate whether the declarations are all of the “declarations, affidavits, or statements” 21 that he has “obtained from inmate-witnesses,” as sought by Request No. 1. (Doc. 43-2 at 19.) 22 Plaintiff also does not respond to Request No. 2. 23 Accordingly, the Court will order Plaintiff to directly respond to Defendant’s requests for 24 production. If Plaintiff objects to a request, he must “state with specificity the grounds for” the 25 objection, “including the reasons.” Fed. R. Civ. P. 34(b)(2)(B). If Plaintiff does not have 26 documents responsive to a request, or if requested documents do not exist, he must state so with 27 enough specificity to allow the Court to evaluate the merit of the response or whether he has 1 1035774, at *4 (E.D. Cal. 2010); Uribe v. McKesson, No. 1:08-cv-01285-DSM-NLS, 2010 WL 2 892093, at *3 (E.D. Cal. 2010). 3 B. Request for Expenses 4 Defendant requests that Plaintiff pay the reasonable expenses, specifically attorney’s fees, 5 incurred in bringing the instant motion to compel. (Doc. 43-1 at 4-6.) Defendant’s counsel states 6 that his hourly rate is $220, and that he expended four hours preparing the motion to compel. 7 (Whisnand Decl. ¶ 8, Doc. 43-2 at 2-3.) Defendant thus requests an award of $880 in expenses. 8 (Doc. 43-1 at 6.) 9 Rule 37(a)(5) provides that if a motion to compel “is granted--or if the disclosure or 10 requested discovery is provided after the motion was filed--the court must, after giving an 11 opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party or 12 attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in 13 making the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A) (emphasis added). 14 Thus, because the Court grants Defendant’s motion to compel, an award of costs is mandatory, 15 unless the Court finds that Plaintiff’s “nondisclosure . . . was substantially justified . . . or . . . 16 other circumstances make an award of expenses unjust.” Id. Pursuant to the rule, the Court will 17 provide Plaintiff an opportunity to be heard before deciding whether an award of costs is 18 mandated. 19 II. CONCLUSION AND ORDER 20 For the reasons set forth above, the Court ORDERS: 21 1. Defendant’s motion to compel Plaintiff’s responses to Defendant’s First Set of 22 Requests for Production, (Doc. 43), is GRANTED. 23 2. Within 30 days of the date of service of this order, Plaintiff shall serve responses to 24 Defendant’s First Set of Requests for Production, as instructed herein. Plaintiff shall 25 serve the responses directly on Defendant; he should not file them with the Court. 26 /// 27 /// 1 3. Within 30 days of the date of service of this order, Plaintiff shall show cause in 2 writing why an award of expenses should not be imposed. Plaintiff shall file his 3 response to this order to show cause with the Court. 4 IT IS SO ORDERED. 5 6 Dated: July 1, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27