Clements v. T-Mobile USA, Inc

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BRADFORD ARTHUR CLEMENTS, Case No. 22-cv-07512-EJD (SVK)

8 Plaintiff, ORDER DENYING PLAINTIFF’S 9 v. MOTION FOR SANCTIONS

10 T-MOBILE USA, INC, et al., Re: Dkt. No. 45 11 Defendants.

12 Before the Court is Plaintiff Clements’ (“Plaintiff” or “Clements”) motion for discovery 13 sanctions (“Sanctions Motion”) against Defendant T-Mobile US, Inc. (“Defendant” or 14 “T-Mobile”), which the Honorable Edward J. Davila referred to the undersigned. Dkt. 45, 51. 15 The Court has reviewed the Parties’ briefs, the relevant litigation history and case law and 16 determines that this matter may be resolved without oral argument. Civ. L.R. 7(1)-b. For the 17 reasons set forth more fully below, Plaintiff’s request for sanctions is DENIED as procedurally 18 improper under Federal Rule of Civil Procedure (“Rule”) 37 and untimely under the Northern District’s Civil Local Rule (“Civ. L.R.”) 7-8(c). Plaintiff’s other miscellaneous requests for relief 19 are DENIED for the reasons stated herein. 20 I. INTRODUCTION 21 Plaintiff’s Sanctions Motion arises out of T-Mobile’s discovery responses served on 22 August 28, 2023 (“August Responses”) and supplemental responses served on October 17, 2023 23 (“October Responses”). Plaintiff complains that the August Responses are incomplete and 24 unverified; T-Mobile failed to meet and confer regarding the August Responses; T-Mobile delayed 25 supplementing its responses until October 17, 2023; and the October Responses are unverified. 26 Plaintiff did not move to compel further discovery responses from T-Mobile but filed this 27 Sanctions Motion on January 3, 2024. Plaintiff now asserts that T-Mobile’s discovery delay 1 prevented him from preparing an opposition to T-Mobile’s motion to compel arbitration and 2 dismiss (“Motion re Arbitration;” Dkt. 37) by the filing deadline of November 15, 2023. 3 Plaintiff’s sanctions Motion seeks a wide range of relief against T-Mobile, including deeming 4 allegations in the First Amended Complaint admitted, precluding defenses, and payment of 5 expenses. Plaintiff also seeks to compel verified responses and requests additional time to oppose 6 T-Mobile’s Motion re Arbitration. Dkt. 45 at 1, 12-16. On January 19, 2024, the Honorable Edward J. Davila granted T-Mobile’s Motion re Arbitration. Dkt. 53. Plaintiff has filed motions 7 for reconsideration and to vacate that order, which are pending before Judge Davila. Dkt. 56, 58. 8 II. RELEVANT BACKGROUND 9 This case has an extensive procedural history. For purposes of this motion, the relevant 10 dates and events are as follows: 11 DATE EVENT 12 7/28/23 Plaintiff serves discovery requests on T-Mobile: 13 Interrogatories Dkt. 45-5; Requests for Admission Dkt. 45-6; 14 Requests for Production Dkt. 45-7.

15 8/2/23 Court enters case management order (Dkt. 41), including briefing schedule for 16 T-Mobile’s Motion re Arbitration and schedule for arbitration-related discovery: First round of discovery responses from T-Mobile due 8/28/23; 17 Second set discovery to be served 9/18/23; T-Mobile second set responses due: 10/18/23. 18 8/28/23 T-Mobile responds to Plaintiff’s discovery requests and produces documents. 19 Dkt. Nos. 45-10; 45-11; 45-12. 20 8/28/23 Plaintiff emails T-Mobile regarding discovery responses and requests meet and 21 confer. T-Mobile does not respond.

22 9/13/23 Plaintiff sends second email to T-Mobile. See Dkt. 45-14 for all correspondence 23 between the parties up to 10/17/23.

24 10/17/23 T-Mobile serves supplemental responses and produces documents. Dkt. 45-15. 25 11/15/23 Plaintiff’s opposition to T-Mobile’s Motion re Arbitration due but not filed.

26 1/3/24 Plaintiff files Motion for Sanctions (“Sanctions Motion”) Dkt. 45. 27 1/18/24 Order referring Sanctions Motion to Magistrate Judge van Keulen. Dkt. 51. 1/19/24 Amended Order to Compel Arbitration and Dismiss (“Order re Arbitration”). 1 Dkt. 53. 2 2/7/24 Plaintiff files motion for reconsideration of Order re Arbitration. Dkt. 56. 3 2/12/24 Plaintiff files motion to vacate Order re Arbitration. Dkt. 58. 4 III. DISCUSSION 5 At the outset, it is significant to note that Plaintiff, although representing himself pro se, is 6 an experienced litigator. See Declaration of Clements (Dkt. 45-1) ¶ 42. As such, Judge Davila has 7 determined that Plaintiff is to be held to the same standards as other attorneys who appear before 8 the Court, including the demands of the Rules of Civil Procedure and this Court’s Civil Local 9 Rules. Dkt. 53 at 7. The undersigned follows suit and further notes that Civil Local Rule 3-9(a) 10 provides that even a pro se litigant “is bound by the Federal Rules, as well as by all applicable 11 local rules. Sanctions (including default or dismissal) may be imposed for failure to comply with 12 local rules.” Accordingly, Plaintiff’s Sanctions Motion must comply with the Federal Rules and 13 the Local Rules. 14 A. Relevant Legal Standards 15 Plaintiff moves for sanctions pursuant to Federal Rule of Civil Procedure (“Rule”) 37(a), 16 37(b) and 37(d). Dkt. 45 at 9, 13. Plaintiff also moves pursuant to Rule 26(g), Rule 16 and this 17 Court’s inherent authority. Dkt. 45 at 13. In relevant part, the Rules and authority Plaintiff 18 invokes provide as follows: 19 • Rule 37(a) provides the basis for an order compelling discovery responses; 20 • Rule 37(b) provides for sanctions when a party fails to comply with a court order, 21 including orders arising under Rule 26(f), 35 or 37(a); 22 • Rule 37(d) provides for sanctions when a party fails to respond to discovery; 23 • Rule 26(g) requires that discovery responses be signed by counsel of record; 24 • Rule 16 addresses pretrial conferences, case schedule and management; and 25 • The Court has inherent authority to sanction a party that has either willfully 26 disregarded a court order or acted in bad faith. Am. Unites for Kids v. Rousseau, 27 1 B. Plaintiff’s Request for Sanctions based upon T- Mobile’s August Responses and 2 Failure to Meet & Confer 3 On July 28, 2023, Plaintiff served Interrogatories, Requests for Production and Requests 4 for Admission. Dkt. 45-5, 45-6, 45-7. On August 28, 2023, T-Mobile served the August 5 Responses, as directed by the CMO. Dkt. 45-10, 45-11, 45-12. This Court has reviewed 6 T-Mobile’s responses and confirms that they consist of a combination of substantive information 7 and objections. For example, in response to Plaintiff’s ten interrogatories, T-Mobile responded 8 substantively to nos. 1, 2, 3, 4 and 10; T-Mobile objected and responded to nos. 5, 6, and 9; and to 9 Interrogatories 7 and 8, T-Mobile responded only with objections. Dkt. 45-10. T-Mobile’s 10 responses to the Requests for Production and Requests for Admission reflect a similar mix. 11 Dkt. 45-12, 45-11, respectively. The Court also confirms that the August Responses are signed by 12 counsel of record, Deborah Yoon Jones, but not verified by T-Mobile. Id. 13 Upon receipt of the August Responses, Plaintiff immediately reached out to T-Mobile to 14 engage in meet & confer efforts. Dkt. 45-9. During the period late-August through September, 15 2023, T-Mobile either deflected Plaintiff’s inquiries or ignored them altogether. Dkt. 45-1 ¶ 27; 16 Dkt. 45-14 (T-Mobile email responses of 9/15/23 and 9/18/23). T-Mobile supplemented its 17 written responses and produced documents on October 17, 2023 (“October Responses”), 50 days 18 after its initial response date. 19 Based upon the foregoing, Plaintiff moves for sanctions under Rule 37(b) and 37(d). 20 Dkt. 45 at 9. In support of sanctions under 37(b), which provides for sanctions when a party 21 violates a court order, Plaintiff points the CMO. Plaintiff argues that T-Mobile “blatantly 22 disregarded its first and most important deadline” under the CMO by submitting responses “that it 23 presently knew were incomplete and evasive . . . .” Dkt. 45 at 10-11. However, responding to 24 discovery requests with not only substantive information but also objections is a “response” under 25 the Rules. See Rule 33(b); Rule 34(b); Rule 36(a). Contrary to Plaintiff’s reasoning, a claim that 26 responses are incomplete does not render them non-existent. Plaintiff’s challenge under 27 Rule 37(d), which provides for sanctions when a party fails to respond to interrogatories, fails for 1 If Plaintiff believed he was entitled to responses that were more substantive, in addition to 2 the missing verification, then the appropriate next step would have been to bring a motion to 3 compel pursuant to Rule 37(a) and Civ. L.R. 37. Such a motion, if prepared in accordance with 4 Rule 37(a) and Civ. L.R. 37, would have provided the Court a timely understanding as to how and 5 where T-Mobile’s responses were “incomplete and evasive,” as Plaintiff argues, and highlighted 6 the missing verifications. Further, where, as here, the responding party would not engage in meet 7 and confer efforts, both Rule 37(a) and Civ. L.R. 37 allow counsel to raise issues with the Court 8 and to seek sanctions.1

9 C. Plaintiff’s Request for Sanctions based upon T-Mobile’s October Responses 10 Plaintiff also seeks sanctions pursuant to Rule 37(a), Rule 26(g) and Rule 16 for 11 T-Mobile’s delayed and unverified supplemental responses. Dkt. 45 at 13-15. Because 12 supplemental responses supersede original responses, see Gavin v. Hilton Worldwide, Inc., No. 13 12-cv-00307-CRB (NJV), 2013 WL 1915612, at *1 n.1 (N.D. Cal. May 8, 2023), Plaintiff’s 14 Sanctions Motion, and this Court, focus on T-Mobile’s October Responses. Significantly, 15 Plaintiff articulates no specific substantive complaints about the quality and content of the October 16 Responses or T-Mobile’s production of documents. See Dkt. 45. 17 Rule 37(a) speaks to motions to compel discovery responses and the sanctions available if 18 such a motion is granted. Here, Plaintiff did not move to compel responses and therefore cannot 19 avail himself of Rule 37(a)’s remedies. Rule 26(g) sets forth the requirement that discovery 20 responses be signed by counsel of record. T-Mobile’s responses are signed by counsel, therefore 21 this Rule is similarly unavailable as a ground for sanctions. Rule 16 addresses in relevant part 22 scheduling orders set by the Court. Plaintiff’s reference to this Rule appears to be another 23 approach to argue that T-Mobile violated the CMO with incomplete responses. As explained 24 above, T-Mobile served written responses to Plaintiff’s discovery requests. Plaintiff’s complaints 25 about those responses should have come to the Court via a timely motion to compel. Rule 37(a); 26 1 Plaintiff’s complaint that T-Mobile refused to meet and confer following the August 28 27 Responses is well taken. T-Mobile’s behavior in this regard is in no way condoned by the Court 1 Civ. L.R. 37. All Plaintiff had to do was read the applicable rules, as is required of all attorneys 2 and pro se litigants appearing before this Court. 3 D. Plaintiff’s Request for Sanctions Based Upon This Court’s Inherent Authority 4 Plaintiff asks this Court to exercise its inherent authority to sanction T-Mobile for 5 discovery misconduct. Dkt. 45 at 14. The Court may exercise its inherent authority to sanction 6 misconduct only where a party willfully disobeys a court order or acts in bad faith. Rousseau, 985 7 F.3d at 1090. A finding bad faith “requires proof of bad intent or improper purpose.” Id. Further, 8 the Ninth Circuit requires that when a court imposes sanctions based on bad faith, “the court must 9 make an explicit finding that the sanctioned party’s conduct ‘constituted or was tantamount to bad 10 faith.’” Id. (emphasis added and citation omitted). 11 Here, Plaintiff’s request is based upon “T-Mobile’s and its counsel’s demonstrated bad 12 faith.” Dkt. 45 at 14. Though Plaintiff does not connect the dots, the Court infers that in this 13 context “bad faith” refers to the content of the August responses, T-Mobile’s failure to meet and 14 confer despite multiple requests, the delay in providing the October Responses and the failure to 15 verify the October Responses. While T-Mobile should have promptly responded to Plaintiff’s 16 request to meet and confer and engaged in substantive, constructive discussions to address his 17 concerns, the record before this Court does not support a finding of bad faith based upon either the 18 August Responses or delayed October Responses, including the lack of verifications. Here, 19 T-Mobile did supplement its responses in the October Responses, and Plaintiff has raised no 20 substantive complaint about those responses. As a result, the record before the Court does not 21 support a finding of bad faith as required by Rousseau. 22

23 E. Plaintiff’s Sanctions Motion is Untimely This District’s rules require that a motion for sanctions be brought “as soon as practicable 24 after . . .learn[ing] of the circumstances” that call for the motion. Civ. L.R. 7-8. The Sanctions 25 Motion was filed on January 3, 2024, more than 4 months after the August 28 responses and 2 ½ 26 months after the October responses. Yet, Plaintiff offers no viable reason as to why he did not 27 1 he suggests, that the timing and substance of T-Mobile’s responses impeded his ability to file an 2 opposition to the pending Motion re Arbitration by November 15, 2023. See Dkt. 45 at 11. 3 Plaintiff attempts to argue excusable neglect, pointing to two communications with the 4 Court, neither of which satisfy Civ. L.R. 7-8. First, in his declaration filed in support of the 5 Sanctions Motion, Plaintiff cites his unsolicited “Request for Case Management Conference” as 6 his attempt to “get T-Mobile’s discovery abuse before the Court.” Dkt. 45-1 ¶ 32, referencing 7 Dkt. 42. In the Order re Arbitration, Judge Davila found that Plaintiff’s “Request for Case 8 Management Conference” was an improper request, in violation of L.R. 7-11 and 16-10(c). This 9 Court agrees. As noted above, Plaintiff is an attorney and is held to the same standards as 10 attorneys appearing before this Court, which includes familiarity this Court’s Civil Local Rules. 11 Dkt. 53 at 7; see also Civ. L.R. 11-4(2). Second, Plaintiff points to an email to Judge Davila’s 12 chambers on October 18, 2023. Dkt. 45-1 ¶ 35. For similar reasons, such a communication is in 13 no way a proper motion for sanctions under Rule 37 or Civ. L.R. 7. 14 In sum, Plaintiff had ample time to read the Rules and the Civil Local Rules and to act in 15 advance of his November 15 deadline; Plaintiff failed to do so. Accordingly, this Sanctions 16 Motion is DENIED as untimely.

17 F. Plaintiff’s Motion to Compel Verified Interrogatory Responses is Untimely 18 Civ. L.R. 37-3 provides that the deadline to bring a motion to compel discovery responses 19 is seven days from the close of discovery, which is defined in Civ. L.R. 37-1 as “the date by which 20 all responses to written discovery are due.” Here the last day for T-Mobile to respond to discovery 21 was October 18, 2023. Accordingly, Plaintiff’s deadline to bring a motion to compel further 22 responses, including verifications, was October 25, 2023. Plaintiff’s out-reach to chambers, 23 discussed above, was in no way a motion to compel. Plaintiff had only to read the rules but failed 24 to do so. Plaintiff’s motion to compel is DENIED as untimely. 25

26 G. Plaintiff’s Request for Discovery and an Extension of Time to Oppose the Motion 27 re Arbitration is Terminated 1 T-Mobile’s Motion re Arbitration is currently pending before Judge Davila in Plaintiff's motions 2 || for reconsideration and to vacate the Order re Arbitration. Dkt. 56; Dkt. 58. Accordingly, these 3 requests before the undersigned are TERMINATED. 4 SO ORDERED. 5 Dated: March 4, 2024 6 1 Seesien val SUSAN VAN KEULEN 8 United States Magistrate Judge 9 10 11 12

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