Lessard, et al v. Trinity Protection Services, Inc.
Filing
101
ORDER signed by Magistrate Judge Kendall J. Newman on 06/17/11 DENYING the 35 and the 58 Motions to Compel as moot; plaintiffs request for the award of reasonable expenses is granted with respect to its motion to compel responses; plaintiffs requ est for an award of reasonable expenses or sanctions in connection with their motion to compel further answers to plaintiffs first set of request for admissions is denied; defendants request for the award of reasonable expenses and/or sanctions is denied. (Michel, G)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MICHAEL LESSARD and ROBERT L.
REAGAN for themselves and on behalf
of all other similarly situate employees,
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Plaintiffs,
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No. 2:10-cv-01262 MCE KJN
v.
TRINITY PROTECTION SERVICES,
INC., a Maryland Corporation, and
DOES 1 through 50, inclusive,
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Defendants.
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ORDER
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Presently before the court are plaintiffs’ motions to: (1) compel answers to
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interrogatories and requests for production served prior to, and subsequent to, the removal of this
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case to federal court (Dkt. No. 35); and (2) compel further answers to plaintiffs’ first set of
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request for admissions (Dkt. No. 58).1 The undersigned heard this matter on its law and motion
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calendar on June 16, 2011. (Minutes, Dkt. No. 97.) Attorney S. Ward Heinrichs appeared on
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behalf of plaintiffs via telephone. Attorney Carolyn B. Hall appeared on behalf of defendant.
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The parties’ joint statement re discovery disagreement and plaintiffs’ counsel’s
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This matter proceeds before the undersigned pursuant to Eastern District of California
Local Rule 302(c)(1) and 28 U.S.C. § 636(b)(1).
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representations at the hearing clarify that, as a result of events occurring after the filing of
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plaintiffs’ motions to compel, the discovery dispute presently before the court is limited to two
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issues: (1) whether, in light of the initial scheduling order entered in this case (Dkt. No. 27),
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plaintiffs were permitted to propound ten special interrogatories pursuant to Federal Rule of Civil
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Procedure 33, which seek information regarding the affirmative defenses asserted by defendant;
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and (2) whether either party is entitled to discovery expenses or sanctions in regards to the
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motions to compel pursuant to Federal Rule of Civil Procedure 37.
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For the reasons stated on the record at the hearing on plaintiffs’ motions to
compel, IT IS HEREBY ORDERED that:
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Plaintiffs’ motion to compel (Dkt. No. 35) is denied as moot to the extent
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that is seeks responses to plaintiffs’: (1) first set of requests for production of documents served
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while this case was pending in state court; (2) first set of general form interrogatories served
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while this case was pending in state court; (3) first set of employment-related form
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interrogatories served while this case was pending in state court; (4) first set of special
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interrogatories, numbered 1 through 26, served while this case was pending in state court; and
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(5) plaintiff’s first set of request for production of documents served pursuant to Federal Rule of
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Civil Procedure 34 after removal of the action. Plaintiffs’ motion to compel is denied on the
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merits to the extent that it concerns plaintiffs’ first set of special interrogatories served pursuant
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to Federal Rule of Civil Procedure 33; plaintiffs’ set of ten interrogatories was served in violation
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of the initial scheduling order in this case.
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Plaintiffs’ motion to compel further answers to plaintiffs’ first set of
request for admissions (Dkt. No. 58) is denied as moot.
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Plaintiffs’ request for the award of reasonable expenses pursuant to
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Federal Rule of Civil Procedure 37(a)(5) is granted with respect to its motion to compel
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responses to the various requests for production and interrogatories served in state and federal
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court, except with regard to the special interrogatories discussed above. Regarding plaintiffs’
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requests for production and interrogatories other that the ten special interrogatories served in
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violation of the initial scheduling order in this case, defendant only responded to discovery after
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plaintiffs were forced to file their motion to compel. See Fed. R. Civ. P. 37(a)(5) (providing that
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“if the disclosure or requested discovery is provided after the motion was filed . . . [,] the court
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must, after giving an opportunity to be heard, require the party or deponent whose conduct
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necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s
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reasonable expenses incurred in making the motion, including attorney’s fees”). In consideration
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of plaintiffs’ counsel’s declarations, plaintiff is awarded $6,000 as reasonable expenses pursuant
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to Rule 37(a)(5).2 Defendant shall pay the award directly to plaintiffs or to plaintiffs’ counsel
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within 45 days of the date of this order and notify the court in writing within seven days of such
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payment.3
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Plaintiffs’ request for an award of reasonable expenses or sanctions in
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connection with their motion to compel further answers to plaintiffs’ first set of request for
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admissions is denied.
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Plaintiffs seek a total of $12,923.33 as reasonable expenses for filing and pursuing both
motions to compel. (Suppl. Heinrichs Decl. ¶ 18, Dkt. No. 96, Doc. No. 96-1.) In light of the
rulings above, plaintiffs are not entitled to an award in that amount. Instead, the undersigned has
made the award above in light of the representations made in plaintiffs’ counsel’s declarations
and in an effort to avoid any additional expenses for plaintiffs and defendants in further
contesting or parsing the matter of reasonable expenses.
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It is apparent from the documents filed by the parties and the parties’ joint statement
that the problems attendant to defendant’s responses to discovery in this case may be largely
attributable to the conduct of defendant’s former counsel, Mr. Na’il Benjamin. However, the
award of reasonable expenses is made only against defendant, as opposed to defendant and Mr.
Benjamin, because it is not at all clear to the court whether Mr. Benjamin was acting on his own
accord or upon defendant’s direction. The court leaves it to defendant, Mr. Benjamin, and Ms.
Hall to determine how, if at all, to apportion responsibility for the award. In any event, defendant
shall make a timely payment of the award consistent with this order.
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5.
Defendant’s request for the award of reasonable expenses and/or sanctions
is denied.
IT IS SO ORDERED.
DATED: June 17, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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