Gilbert v. Castrejon ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DARREN GILBERT, Case No. 1:22-cv-00319-ADA-SKO 10 ORDER ON PLAINTIFF’S MOTION TO Plaintiff, COMPEL DEFENDANTS TO RESPOND 11 TO INTERROGATORIES AND FOR SANCTIONS 12 v. (Doc. 33) 13 GABRIEL CASTREJON, et al., 14 Defendants. _____________________________________/ 15 16 17 I. INTRODUCTION 18 19 On June 26, 2023, Plaintiff Darren Gilbert (“Plaintiff”) filed a Motion to Compel Defendants 20 Gabriel Castrejon, doing business as El Marisquero; Ignacio Castrejon Alvarez, doing business as 21 El Marisquero; and Guaranty Holdings of California, Inc. (collectively, “Defendants”) to Respond 22 to Interrogatories and for Sanctions (“the Motion”). (Doc. 33.) Plaintiff brings the Motion under 23 Local Rule 251(e) based on Defendants’ complete failure to respond to Plaintiff’s First Set of 24 Interrogatories. (Id.) Defendants have not filed an opposition to the Motion. (See Docket.) 25 The Court, having reviewed the record, finds this matter suitable for decision without oral 26 argument. See E.D. Cal. Local Rule 230(g). Accordingly, the hearing set on July 12, 2023, will 27 be VACATED. For the reasons set forth below, Plaintiff’s Motion is GRANTED. 28 1 II. PROCEDURAL AND FACTUAL BACKGROUND 2 On March 18, 2022, Plaintiff initiated this action against Defendants. (Doc. 1.) With leave 3 from the Court (see Doc. 23), Plaintiff filed a first amended complaint on February 24, 2023, 4 asserting a claim for injunctive relief arising out of alleged violations of the Americans with 5 Disabilities Act (“ADA”) and California Health and Safety Codes and a claim for damages 6 pursuant to California’s Unruh Act (Doc. 25). Plaintiff states he is substantially limited in his 7 ability to walk and he must use a wheelchair, knee scooter, or prosthetic for mobility. (Doc. 25 at 8 ¶ 8.) Plaintiff alleges that, on November 4, 2021, he visited the facility that is the subject of this 9 suit, El Marisquero, and encountered numerous barriers outside of the facility that interfered with 10 his ability to use and enjoy the goods, services, privileges, and accommodations offered there. (Id. 11 at ¶¶ 10–11.) 12 All three Defendants have filed answers to the first amended complaint. (See Docs. 29–31.) 13 On June 6, 2023, the presiding District Judge issued an order adopting the undersigned’s 14 recommendation to decline to exercise supplemental jurisdiction over Plaintiff’s state law claims 15 and dismissed them without prejudice. (Doc. 32.) Thus, the only claim that remains pursuant to 16 Plaintiff’s first amended complaint is the ADA claim. The Initial Scheduling Conference in this 17 case is set for August 17, 2023. (See Doc. 28.) 18 On April 27, 2023, Plaintiff served Defendants with his First Set of Interrogatories. (Doc. 19 33-2, Declaration of Tanya E. Moore in Support of Plaintiff’s Motion to Compel Defendants to 20 Respond to Interrogatories and for Sanctions (“Moore Decl.”) at ¶¶ 2–4; see also Doc. 33-3.) On 21 May 31, 2023, at the direction of Plaintiff’s counsel, Tanya Moore, Esq., Paralegal Whitney Law 22 emailed counsel for Defendants, Michael Warda, Esq., to advise that responses to Plaintiff’s 23 discovery requests, including the First Set of Interrogatories, had not been received. (Moore Decl. 24 ¶ 5.) On June 1, 2023, Attorney Moore spoke telephonically with another attorney in Attorney 25 Warda’s office. (Moore Decl. ¶ 6.) The parties met and conferred on the topic of Defendants’ 26 outstanding discovery responses and agreed that Defendants would serve their responses to all of 27 Plaintiff’s written discovery, without objections, by June 9, 2023. (Moore Decl. ¶ 6.) On June 9, 28 1 2023, Defendants served responses to Plaintiff’s other discovery requests, but they did not serve 2 any responses to Plaintiff’s First Set of Interrogatories. (Moore Decl. ¶ 7.) 3 On June 12, 2023, at Attorney Moore’s direction, Paralegal Isaac Medrano emailed Attorney 4 Warda to advise that the interrogatory responses were not received and requested a further meet 5 and confer. (Moore Decl. ¶ 8.) Paralegal Medrano sent follow-up emails to Attorney Warda on 6 June 15, 2023, and June 22, 2023, requesting to schedule a meet and confer. (Moore Decl. ¶ 9.) 7 Attorney Moore does not state whether a response was received. To date, no responses to 8 Plaintiff’s First Set of Interrogatories have been received. (Moore Decl. ¶ 10.) 9 III. DISCUSSION 10 A. Plaintiff’s First Set of Interrogatories 11 Federal Rule of Civil Procedure 33(b)(1)(B)(2) requires that, unless otherwise agreed upon, 12 the responding party must serve its answers and any objections to interrogatories within thirty (30) 13 days after being served. Additionally, Rule 33(b)(1)(B)(3) and (5) require that each interrogatory, 14 “to the extent it is not objected to, be answered separately and fully in writing and under oath” and 15 signed by the answering party. Pursuant to Rule 33(b)(1)(B)(4), any untimely objection to the 16 interrogatory is waived, unless the Court excuses the failure for good cause. 17 Plaintiff’s First Set of Interrogatories were served on Defendants on April 27, 2023, and no 18 responses were served within the agreed-upon deadline. (Moore Decl. ¶¶ 2–4, 6–7.) As of June 19 26, 2023, despite three emails to Defendants’ counsel, no responses had been received and the 20 discovery requests remain outstanding. (Moore Decl. ¶¶ 8–10.) As such, the Court GRANTS 21 Plaintiff’s Motion to compel Interrogatory responses and orders Defendant to serve written 22 responses to Plaintiff’s Interrogatories within seven (7) days of the date of entry of this order. 23 All objections to the Interrogatories have been waived. 24 B. Attorney’s Fees and Costs 25 Pursuant to Rule 37(a)(5)(A), if a motion to compel discovery responses is granted, and if 26 the Court gives the non-responsive party an opportunity to be heard, then the Court “must . . . 27 require the party . . . whose conduct necessitated the motion, the party or attorney advising that 28 conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including 1 attorney’s fees.” 2 Plaintiff requests attorney’s fees in the amount of $673.00 to be divided equally between the 3 three Defendants, or $224.33 per Defendant. (Doc. 33-1 at 4.) Attorney Moore states she spent 4 0.9 hours on the meet and confer efforts regarding the outstanding discovery responses, including 5 her phone call with the other attorney in Attorney Warda’s office, and 0.5 hours on this Motion, 6 totaling 1.4 hours. (Moore Decl. ¶ 11.) Accordingly, Plaintiff seeks attorney’s fees at a rate of 7 $300.00 per hour, totaling $420.00. (Doc. 33-1 at 4.) Attorney Moore also states that Paralegal 8 Law spent 1.7 hours preparing this Motion, “including researching the applicable local rules and 9 standing orders, drafting the notice of the motion, memorandum of points and authorities, 10 declaration, and proposed order.” (Moore Decl. ¶ 13.) Attorney Moore further states that Paralegal 11 Medrano spent 0.5 hours “on efforts to obtain Defendants’ interrogatory responses, including 12 multiple emails to [Attorney] Warda,” in an attempt to obtain the responses without the need for a 13 motion. (Moore Decl. ¶ 12; Doc. 33-1 at 4.) Thus, Plaintiff seeks paralegal fees for 2.2 hours at a 14 rate of $115 per hour, totaling $253.00. (Doc. 33-1 at 4.) 15 Local Rule 251(e) provides that a party responding to a motion to compel discovery “shall 16 file a response . . . not later than seven (7) days before the hearing date.” Defendants were afforded 17 an opportunity to be heard in opposition to Plaintiff’s Motion and failed to file any response 18 whatsoever. (See also Rule 37 advisory committee’s note, 1993 amendments (an opportunity to 19 be heard includes both written submissions and oral hearings).) Plaintiff’s Motion has been 20 granted, and the Court must require Defendants to pay Plaintiff’s reasonable attorney’s fees. See 21 Fed. R. Civ. P. 37(a)(5)(A). 22 The Court finds that the 1.4 hours requested by Plaintiff for attorney’s fees and 2.2 hours for 23 paralegal fees are reasonable. See, e.g., Acosta v. Gill, No. 1:17–cv–00262–LJO–SKO, 2018 WL 24 1806623, at *3 (E.D. Cal. Apr. 17, 2018) (finding 4.4 hours requested by Plaintiff for attorney’s 25 and paralegal fees in preparation of a motion to compel, a prior motion that the Court denied 26 without prejudice, and a related informal discovery dispute conference to be reasonable); Lyon v. 27 Bergstrom Law, Ltd., No. 1:16–cv–00401–DAD–SKO, 2016 WL 6522746, *3 (E.D. Cal. Nov. 2, 28 2016) (finding 5 hours spent on a motion to compel responses to interrogatories and requests for 1 production to be reasonable). Accordingly, the Court ORDERS Defendants to pay Plaintiff’s 2 reasonable attorney’s fees in the amount of $673.00 (1.4 hours at $300.00 per hour for attorney’s 3 fees and 2.2 hours at $115 per hour for paralegal fees). 4 IV. CONCLUSION 5 Accordingly, IT IS HEREBY ORDERED THAT: 6 1. Plaintiff’s Motion (Doc. 33) is GRANTED; 7 2. Defendants are ORDERED to serve written responses to Plaintiff’s First Set of 8 Interrogatories within seven (7) days of the date of entry of this order; and 9 3. Defendant is ORDERED to pay Plaintiff’s attorney, Tanya E. Moore, Esq., of Moore 10 Law Firm, P.C., reasonable attorney’s fees in the amount of $673.00 within thirty 11 (30) days of the date of entry of this order. 12 IT IS SO ORDERED. 13 14 Dated: July 10, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28