Maric v. Alvarado ( 2019 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DENNIS MARIC, Case No. 1:12-cv-00102-SKO 10 Plaintiff, ORDER ON MOTION FOR ORDER COMPELLING PLAINTIFF TO v. 11 COMPLY WITH COURT ORDER AND ALVARADO, et al., REQUEST FOR SANCTIONS 12 Defendants. (Doc. 143-1) 13 _____________________________________/ 14 Before the Court is Defendant Fernando Maldonado (“Deputy Maldonado”)’s Motion for 15 Order Compelling Plaintiff to Comply with Court Order and Request for Sanctions, filed July 10, 16 2019 (the “Motion”). (Doc. 143-1.) Plaintiff did not file an opposition or otherwise respond to the 17 Motion. A hearing on the Motion was held on August 7, 2019. (Doc. 145.) Attorney Ashley N. 18 Reyes appeared on behalf of Deputy Maldonado. (Id.) Plaintiff failed to appear at the hearing. (Id.) 19 Having considered the Motion and oral argument, the Court will grant in part and deny in part the 20 Motion. 21 I. BACKGROUND 22 Plaintiff, proceeding pro se, filed this civil rights suit against the County of Fresno and 23 several law enforcement personnel for incidents that occurred during law enforcement’s response 24 to a domestic violence call. (Doc. 1.) Plaintiff’s First Amended Complaint alleges federal and state 25 law claims against defendants Fresno County Deputy Sheriffs Jon Alvarado (“Deputy Alvarado”), 26 Todd Burk (“Deputy Burk”), John Robinson (“Deputy Robinson”), and Fernando Maldonado 27 (“Deputy Maldonado”) (collectively “Defendants”). (Doc. 5.) 28 1 On June 26, 2019, the Court issued an Order Granting Deputy Maldonado’s Motion to 2 Compel Discovery based on Plaintiff’s failure to provide responses to outstanding discovery 3 requests consisting of Interrogatories and Request for Production of Documents. (Doc. 140.) In the 4 Order, the Court ordered that, by no later than July 8, 2019, Plaintiff must: (1) produce documents 5 responsive to Deputy Maldonado’s Request for Production, Set One, and as to each request that 6 Plaintiff determines he has no responsive documents within his possession, custody, or control, 7 specifically state so in writing, and (2) respond to Deputy Maldonado’s Special Interrogatories, Set 8 One, without objections. (Id.) The Court also awarded monetary sanctions in the form of attorney’s 9 fees in the amount of $567.00 to Deputy Maldonado. (Id.) 10 On July 10, 2019, Deputy Maldonado filed the present Motion. (Doc. 143-1.) He asserts 11 that, after multiple, unsuccessful attempts to contact Plaintiff, Plaintiff failed to provide discovery 12 responses and pay the monetary sanctions as ordered. (Id. at 2; Doc. 143-2, Declaration of Ashley 13 N. Reyes in Support of Motion (“Reyes Decl.”), at ¶¶ 3–4.) Plaintiff also did not contact defense 14 counsel to request additional time to comply and appears to have offered no explanation for his 15 failure to comply. (Id.) Deputy Maldonado requests the Court to require Plaintiff to comply with 16 the Court’s June 26, 2019 Order by a date certain and, if he does not, to dismiss this case. (Doc. 17 143-1 at 3.) As sanctions, Deputy Maldonado requests that the Court award reasonable attorney’s 18 fees against Plaintiff. (Id.; Reyes Decl. ¶ 5.) Deputy Maldonado also asks that the Scheduling Order 19 be modified to enlarge the time for non-expert discovery, given Plaintiff’s failure to respond to date. 20 (Doc. 143-1 at 3.) As noted above, Plaintiff did not file a response or opposition to the Motion, nor 21 did he appear at the hearing. 22 II. DISCUSSION 23 Under Federal Rule of Civil Procedure 37, a court may issue sanctions “against a party who 24 ‘fails to obey an order to provide or permit discovery.’” Leon v. IDX Sys. Corp., 464 F.3d 951, 958 25 (9th Cir. 2006) (quoting Fed. R. Civ. P. 37(b)(2)(A)). In lieu of or in addition to other sanctions, 26 where a party has failed to obey a discovery order, “the court must order the disobedient party, the 27 attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused 28 by the failure, unless the failure was substantially justified or other circumstances make an award 1 of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). 2 Eastern District Local Rule 110 provides that “[f]ailure of counsel or of a party to comply 3 with these Rules or with any order of the Court may be grounds for imposition by the Court of any 4 and all sanctions authorized by statute or Rule or within the inherent power of the Court.” Moreover, 5 Eastern District Local Rule 183(a) provides, in part: 6 Any individual representing himself or herself without an attorney is bound by the 7 Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law. All obligations placed on “counsel” by these Rules apply to individuals 8 appearing in propria persona. Failure to comply therewith may be ground for dismissal, judgment by default, or any other sanction appropriate under these Rules. 9 10 See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987) (“Pro se litigants must follow the same 11 rules of procedure that govern other litigants”) (overruled on other grounds). 12 Here, the Court ordered Plaintiff to respond to Deputy Maldonado’s first set of Special 13 Interrogatories and first set of Request for Production of Documents and to pay attorney’s fees in 14 the amount of $567.00. The Court directed Plaintiff to comply with the Order by no later than July 15 8, 2019. To date, Plaintiff has neither provided the ordered discovery, nor paid the monetary 16 sanction. This failure violated Plaintiff’s discovery obligations and a court order. There is nothing 17 in record to suggest that Plaintiff’s failure was substantially justified or that other circumstances 18 make an award of expenses unjust. Although Plaintiff is proceeding pro se, he is required to abide 19 by the Federal Rules of Civil Procedure and obey all orders of this Court. Plaintiff was on notice 20 that the failure to comply with the Court’s June 26, 2019 Order “could result in sanctions.” (Doc. 21 140 at 9.) He neither opposed the Motion, nor appeared at the hearing. 22 Accordingly, pursuant to Rule 37(b)(2)(C), “the court must order [Plaintiff] . . . to pay 23 reasonable expenses, including attorney's fees, caused by the failure . . .” to comply with the Court’s 24 June 26, 2019 Order. Fed .R. Civ. P. 37(b)(2)(C). Deputy Maldonado submitted to the Court the 25 reasonable expenses incurred due to Plaintiff’s failure to comply: defense counsel spent three hours 26 preparing the Motion and two hours preparing for and attending the hearing, at an hourly rate of 27 $189.00. (Reyes Decl. ¶ 5; Doc. 146, Supplemental Declaration of Ashley N. Reyes in Support of 28 Motion, at ¶ 4.) Plaintiff shall be required to pay additional attorney’s fees in the amount of $945.00. 1 In view of the upcoming non-expert discovery deadline, the Court finds Plaintiff’s failure to 2 provide the ordered discovery in advance of the non-expert deadline constitutes good cause to 3 further modify the Scheduling Order and therefore grants Deputy Maldonado’s request.1 See Fed. 4 R. Civ. P. 16(b)(4). Plaintiff shall respond to the ordered discovery no later than August 23, 2019, 5 and the non-expert discovery deadline shall be extended to September 13, 2019. 6 Finally, the Court declines to impose prospective terminating sanctions in the event Plaintiff 7 does not comply with this order and will deny the Motion to the extent it seeks such relief. Plaintiff 8 is cautioned, however, that any future failure to abide by his discovery obligations, any future refusal 9 to participate in discovery, or any future failure to obey an order of this Court will result in the 10 consideration of terminating sanctions upon request. See Fed. R. Civ. P. 37(b)(2)(A), 41(b); L.R. 11 110. 12 III. CONCLUSION AND ORDER 13 Accordingly, IT IS HEREBY ORDERED that Deputy Maldonado’s Motion for Order 14 Compelling Plaintiff to Comply with Court Order and Request for Sanctions (Doc. 143-1) is 15 GRANTED IN PART AND DENIED IN PART, as follows: 16 1. By no later than August 23, 2019, Plaintiff shall: 17 (a) produce documents responsive to Deputy Maldonado’s Request for Production, 18 Set One, and as to each request that Plaintiff determines he has no responsive 19 documents within his possession, custody, or control, specifically state so in writing; 20 (b) respond to Deputy Maldonado’s Special Interrogatories, Set One, without 21 objections; and 22 (c) pay attorney’s fees to Deputy Maldonado in the amount of $1,512.00. 23 2. The non-expert discovery deadline is hereby CONTINUED to September 13, 2019. 24 All other deadlines set forth in the Scheduling Order (Doc. 133) remain unchanged. 25 3. Deputy Maldonado’s request for the imposition of prospective terminating sanctions 26 is DENIED. 27 28 1 The Court previously continued the non-expert discovery deadline “to give adequate time for the Motion to be heard 1 Plaintiff is CAUTIONED, however, that any future failure to abide by his discovery 2 obligations, any future refusal to participate in discovery, or any future failure to obey an 3 order of this Court WILL result in the consideration of terminating sanctions upon request. 4 IT IS SO ORDERED. 5 Sheila K. Oberto 6 Dated: August 8, 2019 /s/ . 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 28