Richard Arthur Kirkham v. Whatcom County, et al.

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 RICHARD ARTHUR KIRKHAM, CASE NO. 2:25-CV-208-DGE-DWC 11 Plaintiff, v. ORDER ON MOTIONS TO COMPEL 12 AND FOR A MORE DEFINITE WHATCOM COUNTY, et al., STATEMENT 13 Defendants. 14

15 This pro se prisoner civil rights action has been referred to United States Magistrate 16 Judge David W. Christel. Currently before the Court are two motions filed by Plaintiff Richard 17 Arthur Kirkham. In his first motion, Plaintiff seeks to compel discovery from Defendants Jessica 18 Dubek and DentALL, LLC (hereinafter “DentALL Defendants”). Dkt. 53. Plaintiff’s second 19 motion requests a “more definite” answer and responses to requests for information from 20 Defendants Whatcom County, Donnell Tanksley, Wendy Jones, Caleb Erickson, and Breanna 21 Brock (hereinafter “County Defendants”). Dkt. 52. 22 Upon review, Plaintiff’s motion to compel discovery (Dkt. 53) and his motion for more 23 definite answer and responses (Dkt. 52) are denied. 24 1 I. Background 2 Plaintiff initiated this action on January 28, 2025, by filing a civil rights complaint 3 pursuant to 42 U.S.C. § 1983. Dkt. 1. After providing Plaintiff opportunities to cure the 4 deficiencies in his pleadings through amendment, the Court ordered service of Plaintiff’s second

5 amended complaint upon all defendants on June 2, 2025. Dkt. 11. 6 County Defendants filed a motion to dismiss the second amended complaint, which the 7 Court denied on September 29, 2025. Dkt. 44. Then, on October 13, 2025, County Defendants 8 filed a timely answer. Dkt. 46. DentALL Defendants separately answered the second amended 9 complaint. Dkt. 51. On October 14, 2025, the Court entered a pretrial scheduling order requiring 10 that discovery be completed by March 13, 2026, that all discovery motions be filed by February 11 20, 2026, and that dispositive motions be filed by April 13, 2026. Dkt. 47. 12 On February 2, 2026, Plaintiff filed two discovery-related motions with the Court. Dkts. 13 52, 53. Both motions, which were filed manually via the United States Postal Service, are signed 14 and dated by Plaintiff on January 26, 2026. Dkt. 52 at 9; Dkt. 53 at 4. The defendants filed timely

15 responses in opposition to the motions on February 17, 2026. Dkts. 55, 56. The deadline for 16 Plaintiff to file replies in support of his motions elapsed on February 23, 2026, with no replies 17 received from him. See docket. 18 II. Motion to Compel Discovery from DentALL Defendants (Dkt. 53) 19 Plaintiff’s first motion seeks to compel DentALL Defendants’ responses to written 20 discovery. Dkt. 53 at 1–3. Plaintiff represents that he served DentALL Defendants with requests 21 for production, requests for admission, and a series of interrogatories on October 30, 2025. Dkt. 22 53 at 3; see also Dkt. 48 (certificate of service). Plaintiff acknowledges receiving responses to 23 the requests for admission on November 19, 2025, but asserts that he did not receive responses to

24 the requests for production or to the interrogatories. Dkt. 53 at 2. Plaintiff further states that, 1 communicating through his purported power of attorney, Jay Solomon, he attempted to meet and 2 confer with DentALL Defendants regarding the outstanding discovery. Id. at 2–3. Plaintiff states 3 he received no responses from DentALL Defendants or their attorneys of record, and he 4 therefore seeks an order compelling discovery. Id.

5 In response, DentALL Defendants submit a declaration from defense counsel, Attorney 6 John C. Versnel, III, stating that Plaintiff was provided with DentALL Defendants’ responses to 7 his requests for production and interrogatories on January 27, 2026, which is the day after 8 Plaintiff signed and dated his motion to compel. Dkt. 57. With the submission of these responses, 9 DentALL Defendants allege that no discovery remains outstanding and argue that Plaintiff’s 10 motion should be denied. Dkt. 55. DentALL Defendants further contend they are not required to 11 conduct discovery or litigate this matter through Mr. Solomon, who is not licensed to practice 12 law. Id. 13 A. Legal standard 14 The Court strongly disfavors discovery motions and prefers that the parties resolve

15 discovery issues on their own. However, if the parties are unable to resolve a discovery dispute, 16 the requesting party may move for an order to compel. Fed. R. Civ. P. 37(a)(1). 17 As a threshold matter, motions to compel discovery must include a certification that “the 18 movant has in good faith conferred or attempted to confer with the person or party failing to 19 make disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 20 37(a)(1); see also Local Rules W.D. Wash, LCR 37(a)(1). “A good faith effort to confer with a 21 party or person not making a disclosure or discovery requires a face-to-face meeting or a 22 telephone conference.” LCR 37(a)(1). If the movant fails to include such a certification, the court 23 may deny the motion without addressing the merits of the discovery dispute. Id.

24 1 A party may obtain discovery regarding any nonprivileged information that is relevant to 2 any party’s claims and defenses and proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). 3 When seeking a court order compelling discovery, it is incumbent upon the moving party to 4 sufficiently identify the information they seek to compel; without a sufficient showing by the

5 movant, the Court is unable to fulfill its “independent obligation” to review the discovery requests 6 for specificity and frivolousness before granting a motion to compel. Ivins v. Corr. Corp. of Am., 7 291 F.R.D. 517, 520 (D. Mont. 2013). 8 In addition, “the party seeking to compel discovery has the burden of establishing that its 9 request satisfies the relevancy requirements of Rule 26(b)(1).” Bryant v. Ochoa, 2009 WL 10 1390794, at *1 (S.D. Cal. May 14, 2009). Information is relevant if it is “reasonably calculated to 11 lead to the discovery of admissible evidence.” Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 12 625, 635 (9th Cir. 2005) (citations and quotations omitted). The Court has broad discretion to 13 determine relevance. Id. To determine whether a discovery request is proportional to the needs of 14 the case, the Court considers “the importance of the issues at stake in the action, the amount in

15 controversy, the parties’ relative access to relevant information, the parties’ resources, the 16 importance of the discovery in resolving the issues, and whether the burden or expense of the 17 proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). 18 Once the party seeking discovery has established the relevance of their requests, the burden 19 shifts to the party resisting discovery to show the request should be denied. Blankenship v. Hearst 20 Corp., 519 F.2d 418, 429 (9th Cir. 1975); Bryant, 2009 WL 1390794, at *1 (“[T]he party 21 opposing discovery has the burden of showing that the discovery should be prohibited, and the 22 burden of clarifying, explaining or supporting its objections.”). 23 Ultimately, the Court’s discretion to permit or deny discovery is substantial. See Hallett

24 v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (“[A district court’s] decision to deny discovery 1 will not be disturbed except upon the clearest showing that denial of discovery results in actual 2 and substantial prejudice to the complaining litigant.”). The Court may deny or limit the 3 production of otherwise discoverable materials if it determines: “(i) the discovery sought is 4 unreasonably cumulative or duplicative, or can be obtained from some other source that is more

5 convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample 6 opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery 7 is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C)(i)–(iii). 8 B. Discussion 9 Upon review of the parties’ submissions, the Court finds that Plaintiff is not entitled to an 10 order compelling discovery at this time. Although DentALL Defendants did not serve Plaintiff 11 with discovery responses within the deadlines provided in the Federal Rules of Civil Procedure,1 12 their untimely responses do not warrant an order compelling discovery on the current record. 13 This is, in part, because Plaintiff has not identified what he seeks to compel with 14 sufficient detail for the Court to discern whether the discovery requests directed to DentALL

15 Defendants are nonfrivolous and seek specific, discoverable information. Plaintiff may not 16 obtain an order compelling any defendant to provide discovery unless and until he demonstrates 17 his discovery requests are specific, nonfrivolous, and seek discoverable information relevant to 18 these proceedings. See Ivins, 291 F.R.D. at 520; Bryant, 2009 WL 1390794, at *1. This motion, 19 which makes a general request to compel responses to Plaintiff’s requests for production and 20 21

22 1 Absent stipulation or court order to the contrary, interrogatory responses and any objections must be served within thirty days of service, Fed. R. Civ. P. 33(b)(2), and written 23 responses to requests for production must likewise be served within thirty days, Fed. R. Civ. P. 34(b)(2)(A). By providing discovery responses approximately 89 days after Plaintiff’s requests 24 were served, DentALL Defendants did not respond within the required deadlines. 1 interrogatories without attaching or identifying the specific items at issue, does not satisfy that 2 standard. 3 Furthermore, the Court finds that the parties did not exhaust informal methods of 4 resolving their discovery disputes before Plaintiff filed his motion. The Court recognizes that

5 Plaintiff may have attempted to satisfy the meet-and-confer requirement contained in the Federal 6 Rules of Civil Procedure and this Court’s Local Rules by communicating through Mr. Solomon. 7 However, if Plaintiff is unable to engage in discovery or litigate this case pro se, the appropriate 8 course is to obtain counsel. He may not rely on the assistance of non-attorneys who are 9 unauthorized to practice law. For their part, DentALL Defendants and their counsel are reminded 10 of their obligations to engage in discovery in good faith and advised that, given his pro se status, 11 a good faith effort may require that additional time for review and liberal construction be 12 afforded to Plaintiff’s requests. 13 In sum, Plaintiff has not made a sufficient showing to obtain an order compelling 14 discovery from DentALL Defendants, and the Court does not find that the parties are at an

15 impasse on the discovery matters addressed in Plaintiff’s motion such that judicial intervention 16 would be appropriate at this time. See Branch Banking & Tr. Co. v. Pebble Creek Plaza, LLC, 17 2013 WL 12176465, at *1 (D. Nev. July 26, 2013) (judicial intervention is appropriate only 18 when “informal negotiations have reached an impasse on the substantive issue in dispute”). 19 III. Motion for More Definite Answer and Responses from County Defendants (Dkt. 52) 20 Plaintiff’s next motion is styled as a one seeking a “more definite” statement from 21 County Defendants with respect to their answer to the second amended complaint and their 22 23

24 1 responses to Plaintiff’s requests for admission.2 Dkt. 52. Plaintiff includes a copy of County 2 Defendants’ responses to his requests for admission as an exhibit to his motion. Id. at 12–34. 3 Plaintiff alleges that County Defendants have taken inconsistent and conflicting positions in their 4 answer and discovery responses. Plaintiff identifies 39 such instances and argues the alleged

5 inconsistencies indicate evasiveness and bad faith from County Defendants. Id. at 3–6. Plaintiff 6 requests an order directing County Defendants “to move forward with discovery in good faith” 7 and to submit a new responsive pleading and new discovery responses so that Plaintiff may 8 “understand[] County Defendants’ position(s) on material issues and facts.” Id. at 3, 8–9. 9 In response, County Defendants argue that Plaintiff’s motion is procedurally improper to 10 the extent it relies on Federal Rule of Civil Procedure 12(e), which governs motions for more 11 definite statements. Dkt. 56. They further assert that any differences between their answer to the 12 second amended complaint and their subsequent discovery responses reflect the ordinary 13 development of information through discovery, not evasion or bad faith as Plaintiff alleges. Id. In 14 addition, County Defendants argue that, while Plaintiff may not require them to submit a new

15 answer or discovery responses in the manner requested in his motion, he may instead seek 16 clarification of their litigation position though further discovery. Id. 17 The Court agrees with County Defendants’ that Plaintiff’s motion is procedurally 18 improper. Motions for more definite statement under Rule 12(e) apply only to pleadings for 19 which a response is allowed. See Fed. R. Civ. P. 12 (e). Because the Court has not permitted 20 Plaintiff to file a reply to County Defendants’ answer, it is not a pleading subject to Rule 12(e). 21 County Defendants’ discovery responses, which are not pleadings, are also not subject to Rule 22 2 Because Plaintiff’s motion for more definite answer and responses from County 23 Defendants was prepared and filed at the same time as his motion to compel discovery from DentALL Defendants, the Court does not construe Plaintiff’s motion against County Defendants 24 as a motion to compel or review it under the standards applicable to such motions. 1 12(e). Accordingly, Plaintiff is not entitled to a “more definite” answer or discovery responses 2 from Country Defendants through the procedure provided in Rule 12(e). 3 Furthermore, the Court takes County Defendants’ argument that additional discovery 4 procedures remain open to Plaintiff as an indication they remain open to conducting discovery in

5 good faith. Thus, the Court declines to admonish County Defendants as Plaintiff requests. In 6 addition, to the extent Plaintiff wishes to clarify County Defendants’ litigation positions, County 7 Defendants are correct that discovery is still open in this case and, as such, discovery procedures 8 remain open and available to Plaintiff. See Dkt. 47. Finally, if additional time is required to 9 conduct good faith discovery in this case, all parties remain free to seek an extension of case 10 deadlines on that basis. 11 IV. Conclusion 12 For the reasons set forth above, Plaintiff’s motion to compel discovery from DentALL 13 Defendants (Dkt. 53) is denied without prejudice and Plaintiff’s motion for more definite answer 14 and responses to requests for admissions from County Defendants (Dkt. 52) is denied.

15 Dated this 27th day of February, 2026. 16 A 17 David W. Christel United States Magistrate Judge 18 19 20 21 22 23 24