6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8
9 JOSHUA BLAND, Case No. 1:20-cv-00478-DAD-EPG (PC) 10 Plaintiff, ORDER GRANTING DEFENDANTS’ 11 MOTION TO COMPEL v. 12 (ECF. No. 78) ROBERT RODRIGUEZ, et al., 13 Defendants. 14 15 16 17 I. INTRODUCTION 18 Joshua Bland (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights action filed pursuant to 42 U.S.C. § 1983. 20 On December 3, 2021, Defendants filed a motion to compel, arguing that Plaintiff failed 21 to respond to defendant Rodriguez’s first set of interrogatories and first set of requests for 22 production of documents. (ECF No. 78). Defendants ask the Court to “enter an order 23 compelling Bland’s responses to the interrogatories and requests for production of 24 documents without objection.” (ECF No. 78-1, p. 1). Defendants also ask the Court to “order 25 Bland to pay Defendants’ reasonable expenses in bringing this motion in the sum of $880. 26 Alternatively, Defendants renew their request for terminating sanctions, due to Bland’s 27 continued failure to comply with the Court’s discovery orders.” (Id. at 2). On January 3, 2022, 28 Plaintiff filed what appears to be his opposition. (ECF No. 81). 1 For the reasons that follow, the Court will grant Defendants’ motion to compel and 2 order Plaintiff to pay Defendants reasonable expenses in the amount of $880. If Plaintiff fails 3 to respond to the interrogatories and requests for production of documents, or fails to pay the 4 $880, Defendants may file a notice informing the Court of Plaintiff’s failure(s) and the Court 5 will issue findings and recommendations to the assigned district judge recommending dismissal 6 of this action. 7 II. DEFENDANTS’ MOTION 8 “[O]n August 23, 2021, Defendant Rodriguez served Plaintiff Bland a first set of 9 interrogatories and first set of requests for production of documents. The discovery sought 10 information regarding Bland’s claims against Defendants. The discovery also sought 11 information regarding Bland’s efforts to exhaust his administrative remedies or whether he was 12 somehow excused from the exhaustion requirement. This information is necessary in light of 13 Bland’s statements in his operative complaint stating that he did not exhaust his administrative 14 remedies, and Defendants’ need to evaluate whether a motion for summary judgment on the 15 issue of administrative exhaustion is feasible.” (ECF No. 78-1, p. 3) (citations omitted). 16 “Bland’s deadline to respond to Rodriguez’s first set of interrogatories and requests for 17 production of documents expired on October 7, 2021. He did not serve any responses by that 18 deadline.” (Id. at 4) (citations omitted). 19 “On October 29, 2021, Defendants conferred with Bland in writing regarding his failure 20 to provide responses, and also provided courtesy copies of the discovery requests. Bland 21 responded in a letter dated November 15, 2021, stating that he would mail the discovery 22 responses no later than November 18, 2021.” (Id.) (citations omitted). 23 “Both the initial time for Bland to serve his discovery responses, and the time by which 24 he stated he would provide the responses, have passed. Counsel therefore believes that any 25 further efforts to meet and confer to discuss the discovery would be futile. Additionally, 26 because of the upcoming deadline to file any motion based on administrative exhaustion, 27 Defendants can no longer wait. As of this motion, Defendants still have not received Bland’s 28 responses to any of Rodriguez’s written discovery served last August.” (Id.) (citations 1 omitted). 2 “In light of Bland’s complete failure to serve responses to Rodriguez’s first set of 3 interrogatories, and first set of requests for production of documents, the Court should enter an 4 order compelling Bland to serve written responses, and to identify and produce responsive 5 documents, if he has any.” (Id.). 6 Defendants also argue that the Court should order Plaintiff to pay Defendants’ 7 reasonable expenses in bringing this motion, in the amount of $880 (four hours of attorney time 8 at a rate of $220 per hour). (Id. at 4-5). Alternatively, Defendants renew their request for 9 terminating sanctions. (Id. at 6). 10 III. PLAINTIFF’S OPPOSITION 11 Plaintiff argues that the Court has “mistakenly” treated his pleadings as a “complaint.” 12 (ECF No. 81, p. 1). However, Plaintiff did not file a “complaint,” and thus the Federal Rules of 13 Civil Procedure do not apply to this matter. (Id.). 14 IV. LEGAL STANDARDS 15 Under Rule 37 of the Federal Rules of Civil Procedure, “[a] party seeking discovery 16 may move for an order compelling an answer, designation, production, or inspection.” Fed. R. 17 Civ. P. 37(a)(3)(B). The Court may order a party to provide further responses to an “evasive or 18 incomplete disclosure, answer, or response….” Fed. R. Civ. P. 37(a)(4). 19 “The party seeking to compel discovery has the burden of establishing that its request 20 satisfies the relevancy requirements of Rule 26(b)(1). Thereafter, the party opposing discovery 21 has the burden of showing that the discovery should be prohibited, and the burden of clarifying, 22 explaining or supporting its objections.” Bryant v. Ochoa, 2009 WL 1390794 at *1 (S.D. Cal. 23 May 14, 2009) (citation omitted). 24 “Unless otherwise limited by court order, the scope of discovery is as follows: Parties 25 may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim 26 or defense and proportional to the needs of the case, considering the importance of the issues at 27 stake in the action, the amount in controversy, the parties’ relative access to relevant 28 information, the parties’ resources, the importance of the discovery in resolving the issues, and 1 whether the burden or expense of the proposed discovery outweighs its likely benefit. 2 Information within this scope of discovery need not be admissible in evidence to be 3 discoverable.” Fed. R. Civ. P. 26(b)(1). 4 “District courts have ‘broad discretion to manage discovery and to control the course of 5 litigation under Federal Rule of Civil Procedure 16.’” Hunt v. County of Orange, 672 F.3d 6 606, 616 (9th Cir. 2012) (quoting Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833 7 (9th Cir. 2011)). 8 V. ANALYSIS 9 Defendants have met their burden to show that they served discovery seeking relevant 10 information, and Plaintiff has failed to show that the discovery should be prohibited. 11 Plaintiff’s argument that he did not file a “complaint” and that the Federal Rules of 12 Civil Procedure thus do not apply is without merit. Plaintiff commenced this action by filing a 13 complaint (ECF No. 1), and this action is currently proceeding on his First Amended Complaint 14 (ECF No. 14). 15 As Plaintiff failed to respond to Defendants’ discovery request, and as no reason has 16 been provided by Plaintiff as to this failure, the Court will grant Defendants’ motion to compel. 17 Plaintiff will be given thirty days from the date of service of this order to serve responses to 18 Rodriguez’s discovery requests without objection,1 and to identify and produce responsive 19 documents, if he has any.
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6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8
9 JOSHUA BLAND, Case No. 1:20-cv-00478-DAD-EPG (PC) 10 Plaintiff, ORDER GRANTING DEFENDANTS’ 11 MOTION TO COMPEL v. 12 (ECF. No. 78) ROBERT RODRIGUEZ, et al., 13 Defendants. 14 15 16 17 I. INTRODUCTION 18 Joshua Bland (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights action filed pursuant to 42 U.S.C. § 1983. 20 On December 3, 2021, Defendants filed a motion to compel, arguing that Plaintiff failed 21 to respond to defendant Rodriguez’s first set of interrogatories and first set of requests for 22 production of documents. (ECF No. 78). Defendants ask the Court to “enter an order 23 compelling Bland’s responses to the interrogatories and requests for production of 24 documents without objection.” (ECF No. 78-1, p. 1). Defendants also ask the Court to “order 25 Bland to pay Defendants’ reasonable expenses in bringing this motion in the sum of $880. 26 Alternatively, Defendants renew their request for terminating sanctions, due to Bland’s 27 continued failure to comply with the Court’s discovery orders.” (Id. at 2). On January 3, 2022, 28 Plaintiff filed what appears to be his opposition. (ECF No. 81). 1 For the reasons that follow, the Court will grant Defendants’ motion to compel and 2 order Plaintiff to pay Defendants reasonable expenses in the amount of $880. If Plaintiff fails 3 to respond to the interrogatories and requests for production of documents, or fails to pay the 4 $880, Defendants may file a notice informing the Court of Plaintiff’s failure(s) and the Court 5 will issue findings and recommendations to the assigned district judge recommending dismissal 6 of this action. 7 II. DEFENDANTS’ MOTION 8 “[O]n August 23, 2021, Defendant Rodriguez served Plaintiff Bland a first set of 9 interrogatories and first set of requests for production of documents. The discovery sought 10 information regarding Bland’s claims against Defendants. The discovery also sought 11 information regarding Bland’s efforts to exhaust his administrative remedies or whether he was 12 somehow excused from the exhaustion requirement. This information is necessary in light of 13 Bland’s statements in his operative complaint stating that he did not exhaust his administrative 14 remedies, and Defendants’ need to evaluate whether a motion for summary judgment on the 15 issue of administrative exhaustion is feasible.” (ECF No. 78-1, p. 3) (citations omitted). 16 “Bland’s deadline to respond to Rodriguez’s first set of interrogatories and requests for 17 production of documents expired on October 7, 2021. He did not serve any responses by that 18 deadline.” (Id. at 4) (citations omitted). 19 “On October 29, 2021, Defendants conferred with Bland in writing regarding his failure 20 to provide responses, and also provided courtesy copies of the discovery requests. Bland 21 responded in a letter dated November 15, 2021, stating that he would mail the discovery 22 responses no later than November 18, 2021.” (Id.) (citations omitted). 23 “Both the initial time for Bland to serve his discovery responses, and the time by which 24 he stated he would provide the responses, have passed. Counsel therefore believes that any 25 further efforts to meet and confer to discuss the discovery would be futile. Additionally, 26 because of the upcoming deadline to file any motion based on administrative exhaustion, 27 Defendants can no longer wait. As of this motion, Defendants still have not received Bland’s 28 responses to any of Rodriguez’s written discovery served last August.” (Id.) (citations 1 omitted). 2 “In light of Bland’s complete failure to serve responses to Rodriguez’s first set of 3 interrogatories, and first set of requests for production of documents, the Court should enter an 4 order compelling Bland to serve written responses, and to identify and produce responsive 5 documents, if he has any.” (Id.). 6 Defendants also argue that the Court should order Plaintiff to pay Defendants’ 7 reasonable expenses in bringing this motion, in the amount of $880 (four hours of attorney time 8 at a rate of $220 per hour). (Id. at 4-5). Alternatively, Defendants renew their request for 9 terminating sanctions. (Id. at 6). 10 III. PLAINTIFF’S OPPOSITION 11 Plaintiff argues that the Court has “mistakenly” treated his pleadings as a “complaint.” 12 (ECF No. 81, p. 1). However, Plaintiff did not file a “complaint,” and thus the Federal Rules of 13 Civil Procedure do not apply to this matter. (Id.). 14 IV. LEGAL STANDARDS 15 Under Rule 37 of the Federal Rules of Civil Procedure, “[a] party seeking discovery 16 may move for an order compelling an answer, designation, production, or inspection.” Fed. R. 17 Civ. P. 37(a)(3)(B). The Court may order a party to provide further responses to an “evasive or 18 incomplete disclosure, answer, or response….” Fed. R. Civ. P. 37(a)(4). 19 “The party seeking to compel discovery has the burden of establishing that its request 20 satisfies the relevancy requirements of Rule 26(b)(1). Thereafter, the party opposing discovery 21 has the burden of showing that the discovery should be prohibited, and the burden of clarifying, 22 explaining or supporting its objections.” Bryant v. Ochoa, 2009 WL 1390794 at *1 (S.D. Cal. 23 May 14, 2009) (citation omitted). 24 “Unless otherwise limited by court order, the scope of discovery is as follows: Parties 25 may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim 26 or defense and proportional to the needs of the case, considering the importance of the issues at 27 stake in the action, the amount in controversy, the parties’ relative access to relevant 28 information, the parties’ resources, the importance of the discovery in resolving the issues, and 1 whether the burden or expense of the proposed discovery outweighs its likely benefit. 2 Information within this scope of discovery need not be admissible in evidence to be 3 discoverable.” Fed. R. Civ. P. 26(b)(1). 4 “District courts have ‘broad discretion to manage discovery and to control the course of 5 litigation under Federal Rule of Civil Procedure 16.’” Hunt v. County of Orange, 672 F.3d 6 606, 616 (9th Cir. 2012) (quoting Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833 7 (9th Cir. 2011)). 8 V. ANALYSIS 9 Defendants have met their burden to show that they served discovery seeking relevant 10 information, and Plaintiff has failed to show that the discovery should be prohibited. 11 Plaintiff’s argument that he did not file a “complaint” and that the Federal Rules of 12 Civil Procedure thus do not apply is without merit. Plaintiff commenced this action by filing a 13 complaint (ECF No. 1), and this action is currently proceeding on his First Amended Complaint 14 (ECF No. 14). 15 As Plaintiff failed to respond to Defendants’ discovery request, and as no reason has 16 been provided by Plaintiff as to this failure, the Court will grant Defendants’ motion to compel. 17 Plaintiff will be given thirty days from the date of service of this order to serve responses to 18 Rodriguez’s discovery requests without objection,1 and to identify and produce responsive 19 documents, if he has any. 20 The Court will also grant Defendants’ request for attorney’s fees.2 21 Under Rule 37(a)(5)(A): 22 If the motion [to compel] is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an 23 opportunity to be heard, require the party or deponent whose conduct necessitated the motion … to pay the movant’s reasonable expenses incurred in 24 making the motion, including attorney’s fees. But the court must not order this payment if: 25
26 1 “It is well established that a failure to object to discovery requests within the time required constitutes a 27 waiver of any objection.” Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992). 2 As the Court is granting Defendants’ request for attorney’s fees, the Court will not address Defendants’ 28 alternative request to renew their motion for terminating sanctions. However, the Court will recommend terminating sanctions if Plaintiff fails to comply with this order. (i) the movant filed the motion before attempting in good faith to obtain the 1 disclosure or discovery without court action; 2 (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or 3 (iii) other circumstances make an award of expenses unjust. 4 Fed. R. Civ. P. 37(a)(5)(A). 5 Here, Defendants attempted to meet and confer with Plaintiff, to no avail. Moreover, as 6 discussed above, Plaintiff’s argument as to why he did not need to respond to discovery are 7 without merit. Finally, the Court does not find that other circumstances make an award of 8 expenses unjust. The Court notes that Plaintiff was previously sanctioned because he 9 repeatedly failed to comply with Court orders requiring him to provide initial disclosures. (See 10 ECF No. 64). Thus, Defendants are entitled to the reasonable expenses incurred in making this 11 motion. 12 The Court next turns to calculating the reasonable fees. Reasonable attorney fees are 13 generally calculated based on the traditional “lodestar” method. Camacho v. Bridgeport 14 Financial, Inc., 523 F.3d 973, 978 (9th Cir. 2008). “The ‘lodestar’ is calculated by multiplying 15 the number of hours the prevailing party reasonably expended on the litigation by a reasonable 16 hourly rate.” Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996), opinion 17 amended on denial of reh’g, 108 F.3d 981 (9th Cir. 1997). When calculating the lodestar 18 amount, the Court looks “to the prevailing market rates in the relevant community”—in this 19 case the Fresno Division of the Eastern District of California. Blum v. Stenson, 465 U.S. 886, 20 895 & n. 11 (1984). 21 The Court finds that $220 per hour, which is California’s billing rate for Deputy 22 Attorneys General (ECF No. 78-2, p. 35), is a reasonable rate.3 The Court also finds that 23 defense counsel reasonably expended four hours of time to prepare this motion to compel. 24 25 3 See, e.g., In re Taco Bell Wage & Hour Actions, 222 F. Supp. 3d 813, 839 (E.D. Cal. 2016) (noting attorneys in Fresno Division with twenty or more years of experience are awarded $350.00 to 26 $400.00 per hour, and attorneys with less than fifteen years of experience are awarded $250.00 to $350.00 per hour); Garcia v. FCA US LLC, 2018 WL 1184949, at *6 (E.D. Cal. Mar. 7, 2018) (awarding 27 $400.00 per hour to attorney with nearly thirty years of experience; $300.00 to attorney with nearly fifteen years of experience; $250.00 to attorney with ten years of experience; $225.00 to attorneys 28 attorney with five years of experience; and $175.00 to attorney with less than five years of experience). 1 || Accordingly, the Court will grant Defendants’ request for $880 in fees. 2 Given that Plaintiff was previously sanctioned for repeatedly failing to follow 3 || Court orders (ECF No. 64), the Court warns Plaintiff that if he fails to respond to the || interrogatories and requests for production of documents, or fails to pay the $880, > || Defendants may file a notice informing the Court of Plaintiff's failure(s) and the Court © || will issue findings and recommendations to the assigned district judge recommending 7 |! dismissal of this action. For the foregoing reasons, IT IS ORDERED that: ° 1. Plaintiff has thirty days from the date of service of this order to serve responses to Rodriguez’s discovery requests without objection, and to identify and produce it responsive documents, if he has any. 2. Plaintiff has thirty days from the date of service of this order to pay Defendants’ reasonable attorney’s fees in the amount of $880. 3. If Plaintiff fails to respond to the interrogatories and requests for production of documents, or fails to pay the $880, Defendants may file a notice informing the “8 Court of Plaintiff's failure(s) and the Court will issue findings and recommendations to the assigned district judge recommending dismissal of this ‘8 action. 19 20 IS SO ORDERED. pated: _ January 4, 2022 [Je hey — 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28