Walker v. Fresno Police Department et al
Filing
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ORDER regarding 46 Defendants' motion to compel signed by Magistrate Judge Sheila K. Oberto on 6/23/2011. (Timken, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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HAROLD WALKER,
CASE NO. 1:09-cv-01667-OWW-SKO
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Plaintiff,
ORDER REGARDING
DEFENDANTS’ MOTION TO
COMPEL
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v.
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CITY OF FRESNO, et al.,
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(Docket No. 46)
Defendants.
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/
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I.
INTRODUCTION
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Plaintiff Harold Walker ("Plaintiff") is proceeding pro se and in forma pauperis in this action
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pursuant to 42 U.S.C. § 1983 against Defendant-Officers Alvarez, Aranas, Leibee, Dozier, and
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Corona (collectively, "Defendants"). Plaintiff filed this action on September 21, 2009.
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On February 28, 2011, Defendants propounded discovery on Plaintiff including
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Interrogatories and Requests for Admissions ("RFAs"). Defendant Aranas also served Plaintiff with
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Requests for Production of Documents, Set One ("RFPs"). Responses to all the discovery requests
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were due on April 18, 2011. (Doc. 46-2, ¶ 3.) Plaintiff responded to the Interrogatories, but not to
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Defendants' RFAs or to Defendant Aranas' RFPs.
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On May 24, 2011, Defendants filed a Motion to Compel which seeks a court order requiring
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Plaintiff to respond to the RFAs and RFPs. (Doc. 46-1.) Defendants' counsel, Michelle Sassano,
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submitted a declaration in support of Defendants' motion stating that Defendants did not receive a
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response to either the RFAs or the RFPs. (Doc. 46-2, ¶ 5.)
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On June 27, 2011, attorney Sassano provided a supplemental declaration stating that
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responses were provided to all discovery requests except for the RFPs. (Doc. 48, ¶ 4 ("The Request
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for Production of Documents (Set One) propounded by Defendant [Christopher Aranas] is the only
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outstanding discovery request remaining.").) A copy of the RFPs and the corresponding proof of
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service were attached as exhibits to Ms. Sassano's supplemental declaration, but the RFAs and their
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respective proof of service were not provided. (Doc. 48.)
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II.
A.
DISCUSSION
Defendants' Request for Admissions
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The failure to timely respond to Requests for Admissions results in automatic admission of
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the matters requested. FRCP 36(a)(3). "No motion to establish the admissions is needed because
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Federal Rule of Civil Procedure 36(a) is self executing." Fed. Trade Comm. v. Medicor LLC, 217
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F. Supp. 2d 1048, 1053 (C.D. Cal. 2002); Garcia v. City of Ceres, No. CVF. 08-1720 LJO SKO,
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2010 WL 2490917, at *4 n.5 (E.D. Cal. June 16, 2010). Once admitted, the matter is conclusively
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established "unless the court, on motion, permits the admission to be withdrawn or amended." FRCP
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36(b).
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To the extent that Defendants are seeking an order compelling a response to the RFAs, that
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request is moot for several reasons. First, a failure to timely respond to requests for admissions
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results in automatic admission of the matters requested; no motion is necessary. See Medicor, supra.
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Second, Ms. Sassano's supplemental declaration indicates that a response to the RFAs was received.
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Third, even if a motion to compel responses to the RFAs was not moot, the Court does not have
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copies of the RFAs or the proof of service to determine timeliness of any responses that were
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received.
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B.
Defendant Aranas' Requests for Production of Documents
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Pursuant to FRCP 34(a), a party may request production of documents. If the party to whom
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the request was directed fails to appropriately respond, FRCP 37(a) allows the requesting party to
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"move for an order compelling disclosure or discovery." FRCP 37(a)(1). Defendant Aranas' RFPs
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were served on February 28, 2011, but no responses were received on the April 18, 2011, deadline.
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(Doc. 48, ¶ 4.) Defendant Aranas offered to extend the response deadline to May 9, 2011, through
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a meet and confer letter mailed to Plaintiff on April 29, 2011, but Plaintiff filed no responses. (Doc.
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48, ¶ 3.)
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As Plaintiff has failed to provide any response to the RFPs, the Court orders Plaintiff to
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serve a response to Defendant Aranas' RFPs within thirty-three (33) days from the date of this order.
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All objections to the RFPs have been waived. If Plaintiff determines that there are no documents
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responsive to any given RFP, he shall state this in a written answer to the RFPs.
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C.
Apportionment of Fees and Costs of Defendants' Motion
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Pursuant to FRCP 37(a), if a motion to compel discovery responses is granted in part and
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denied in part, and if the Court gives the non-responsive party an opportunity to be heard, then the
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court may "apportion the reasonable expenses for the motion." FRCP 37(a)(5)(C). Defendants
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request reasonable costs and attorneys' fees for three hours at a rate of $175.00 per hour, totaling
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$525.00. (Doc. 46-2.)
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Plaintiff was afforded an opportunity to be heard in opposition to Defendants' Motion to
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Compel, but Plaintiff did not file an opposition. See FRCP 37 advisory committee's note, 1993
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amendments (an opportunity to be heard includes both written submissions and oral hearings).
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Defendants' motion to compel has been granted in part and denied in part, and some apportionment
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of the reasonable expenses for the motion may be appropriate. The Court will hold in abeyance its
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decision to apportion fees and costs until Plaintiff has provided responses to Defendant Aranas'
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RFPs. Defendant Aranas shall file a status update forty-five (45) days from the date of this order
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reporting whether Plaintiff has complied with the order and whether there are any disputes regarding
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the responses provided.
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III.
CONCLUSION
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For the reasons stated above, Defendants' Motion to Compel Plaintiff to respond to
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Defendants' RFAs is denied as moot. Defendants' Motion to Compel Plaintiff to respond to
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Defendant Aranas' RFPs is granted.
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Accordingly, IT IS HEREBY ORDERED THAT:
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1.
Defendants' Motion to Compel is GRANTED in part and DENIED in part;
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2.
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Defendants' Motion to Compel a response to Defendant Aranas' Requests for
Admissions is DENIED as moot;
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3.
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Defendants' Motion to Compel a response to Defendants' Request for Production of
Documents, Set One is GRANTED;
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4.
Plaintiff is ordered as follows:
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a.
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Plaintiff shall serve a response to Defendant Aranas' RFPs within
thirty-three (33) days from the date of this order;
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b.
Plaintiff shall provide a proof of service when serving his responses;
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c.
If Plaintiff determines that there are no documents that are responsive
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to a particular RFP, he shall state this as a written response to that
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RFP.
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5.
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Defendant Aranas is ordered to file a status update regarding Plaintiff's compliance
with this order within forty-five (45) days from the date of this order.
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IT IS SO ORDERED.
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Dated:
d70o4d
June 23, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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