Smith v. County of Sacramento ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CLIFFORD SMITH, KRISTINA No. 2:19–cv–01426–TLN–CKD FLESHMAN, 12 ORDER CONTINUING HEARING ON PlaintiffS, MOTION TO COMPEL (ECF No. 19) TO 13 APRIL 7, 2021 & v. 14 ORDER TO SHOW CAUSE COUNTY OF SACRAMENTO, et al., 15 Defendants. 16 17 18 Defendant Angela Vickers, M.D., has filed a motion to compel plaintiffs Clifford Smith 19 and Kristina Fleshman to furnish responses to a total of four sets of discovery, consisting of 20 Special Interrogatories, Set One, and Requests for Production, Set One, propounded to each 21 plaintiff. (ECF No. 19.) The motion was noticed for hearing before the undersigned on March 10, 22 2021, making plaintiff’s opposition due no later than March 3, 2021.1 See E.D. Cal. R. 251(e). 23 There has been no opposition filed or other communication from plaintiffs’ counsel. 24 Accordingly, plaintiffs’ counsel is ordered to show cause, in writing, why the court should not 25 grant the motion to compel, ordering responses without objections, and to show cause, in writing, 26 27 1 This matter is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(1) and 28 U.S.C. § 636(b)(1). 28 1 why the court should not impose monetary sanctions against plaintiffs’ counsel for failing to 2 participate in meet and confer efforts, failing to assist in creating a joint statement regarding this 3 discovery dispute, and failing to respond to the motion to compel. 4 The hearing on this motion to compel (ECF No. 19) is continued to April 7, 2021 at 10:00 5 a.m. 6 BACKGROUND 7 Plaintiffs filed this action in the Superior Court of the State of California, County of 8 Sacramento, after which defendant County of Sacramento removed to this court. Plaintiffs allege 9 two causes of action against defendant Vickers: “42 U.S.C. section 1983 (Unwarranted Non- 10 Consensual Medical Exam” and “Monell Related Claim (Unwarranted Seizure)”. Plaintiffs’ 11 allegations stem from alleged unwarranted non-consensual medical examinations of their minor 12 children in 2017 allegedly ordered by defendant Vickers. (ECF No. 1, Notice of Removal and 13 Complaint.) 14 On October 30, 2020, counsel for defendant Vickers served written discovery requests on 15 both plaintiffs: Special Interrogatories, Set One, and Requests for Production of Documents, Set 16 One. As to each plaintiff, the requests consist of 21 special interrogatories and 7 requests for 17 production of documents. (ECF No. 19-1 at 5-31.) 18 To date, neither plaintiff has responded to any of the discovery requests. In addition, 19 plaintiffs’ counsel has made no response to two letters from counsel for defendant Vickers.2 (ECF 20 No. 19-1 at 2-3.) On February 4, 2021, defendant Vickers filed the instant motion to compel, 21 asking the court to order plaintiffs to respond, without objection, to the four sets of discovery 22 requests. (ECF No. 19.) 23 //// 24 //// 25 2 Defendant County of Sacramento has also filed a motion to compel outstanding discovery. (ECF 26 No. 20.) Defendant County of Sacramento similarly states that plaintiffs’ counsel has not 27 responded to letters, emails or phone messages regarding outstanding discovery requests. (ECF No. 20-2 at 2-3.) Defendant County of Sacramento’s motion is currently calendared for hearing 28 on April 7, 2021, at 10:00 a.m. 1 DISCUSSION 2 Unless otherwise agreed, a party must serve answers and any objections to interrogatories 3 within 30 days after service—and likewise must respond within 30 days of service to requests for 4 production of documents. Fed. R. Civ. P. 33(b)(2), 34(b)(2)(A). Any objections not timely 5 asserted are waived, unless the court, for good cause, excuses the failure to object. Fed. R. Civ. P. 6 33(b)(4); Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (“It 7 is well established that a failure to object to discovery requests within the time required 8 constitutes a waiver of any objection.”) (discussing Rules 33 & 34). 9 By failing to respond or object to the discovery requests, plaintiffs have waived all 10 objections to the Interrogatories and Requests for Production at issue. See Fed. R. Civ. P. 11 33(b)(4) and 34(b)(2)(A); Richmark Corp., 959 F.2d at 1473. Plaintiffs have not sought an 12 extension of time from the propounding defendant or the court. Plaintiffs’ counsel offers no 13 explanation for failing to respond to follow-up inquiries from defense counsel and has not filed an 14 opposition to the instant motion. 15 Accordingly, the court orders plaintiffs’ counsel to show cause, in writing, why the court 16 should not grant the motion to compel and further to show cause, in writing, why the court should 17 not impose monetary sanctions against plaintiff’s counsel for failing to participate in meet and 18 confer efforts, failing to assist in creating the joint statement regarding this discovery dispute, and 19 otherwise failing to respond to this motion to compel. 20 Plaintiffs and plaintiffs’ counsel are warned that failure to comply with this order may 21 result in the imposition of sanctions, including monetary sanctions, and, in addition, up to and 22 including dismissal of plaintiffs’ claims against defendant Vickers. See Fed. R. Civ. P. 37(b)(2). 23 CONCLUSION 24 For these reasons, IT IS ORDERED THAT: 25 1. The hearing on defendant’s motion to compel (ECF No. 19) is continued to April 7, 2021, 26 at 10:00 a.m. 27 2. Within 7 days of the date of entry of this order, plaintiffs’ counsel shall show cause, in 28 writing, why the court should not impose monetary sanctions against him for failing to 1 participate in meet and confer efforts, failing to assist in creating the joint statement 2 regarding this discovery dispute, and failing to respond to the motion to compel. 3 | ITIS ORDERED. 4 | Dated: March 4, 2021 FD Lad CAN fu fl. ay > CAROLYN K. DELANEY 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 | 8.0sc smith 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28