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Gutierrez-Howerton v. Gonzales

United States District Court, D. Nevada

June 11, 2014

NICOLE GONZALES, et al., Defendants.

ORDER (Mot Compel and Sanctions - Dkt. #17) (Mot Ext Time - Dkt. #19)

PEGGY A. LEEN, Magistrate Judge.

Before the court is Defendants' Motion to Compel and Request for Sanctions Pursuant to FRCP 37 (Dkt. #17), and Plaintiff's Motion to Extend Time. The court has considered the Motion. No opposition was filed and the time for filing a response has now run. The court initially set the motion for hearing on April 29, 2014. The Plaintiff, who is appearing pro se, requested an extension of time to file a response (Dkt. #19), and continuance of the hearing (Dkt. #20) which the court granted. The hearing was reset for May 27, 2014, and again continued due to the court's scheduling needs to June 3, 2014. Prior to the hearing Plaintiff again requested an extension of time (Dkt. #23) indicating she would respond to Defendants' outstanding discovery requests by June 2, 2014, and was unable to attend the hearing because she was out of state. The court denied the request to continue the hearing, but allowed the Plaintiff to appear telephonically. In a written Order (Dkt. #24) the court gave Plaintiff the necessary information to make arrangements with the courtroom deputy to appear at the hearing telephonically. However, she failed to make the necessary arrangements, did not call in, and was not available at the number provided on the court's docket when the hearing was called. Thomas Dillard appeared on behalf of the Defendants.


The Complaint (Dkt. #1) in this case was filed July 17, 2013. Plaintiff asserts claims for deprivation of her civil rights and various state claims against Defendant police officers with the Las Vegas Metropolitan Police Department ("LVMPD"). Plaintiff's claims arise out of a November 25, 2012 incident in which she and her fiance, currently her husband, were stopped in a traffic stop riding a moped near the Cheyenne and Rainbow intersection in Las Vegas, Nevada. The initial stop was made by Officer Gonzales. The encounter escalated to a physical confrontation which resulted in multiple officers responding to the scene. Plaintiff's fiance called family members who also responded to the scene. Plaintiff alleges she was handcuffed, taken into custody, and transported to the Clark County Detention Center in the absence of probable cause and in violation of her Fourth Amendment Right. She was charged with battery on a police officer which was dismissed. She seeks general damages, compensatory damages and punitive damages.

Defendants' filed an Answer (Dkt. #9) September 9, 2013, and the court entered a Discovery Plan and Scheduling Order (Dkt. #12) October 23, 2013, which established a March 10, 2014 discovery cutoff.

Defendants served interrogatories and requests for production of documents on October 23, 2013, which were due thirty days later. Plaintiff did not timely respond or request an extension of time to respond. Counsel for the Defendants sent Plaintiff correspondence February 27, 2014, and follow-up correspondence March 13, 2014, seeking to obtain her compliance with her discovery obligations. Copies of the discovery requests and correspondence are attached to the motion to compel. Plaintiff did not respond to the letters or attempt to contact defense counsel regarding her overdue discovery responses and this motion was filed.

Plaintiff did not file a timely response to the motion to compel or request an extension of time in which to respond. She did, however, file a "Notice and Motion to Extend Time to Respond to Defendants' Request for Admissions/Interrogatories and Memorandum in Support Thereof (Dkt. #19) on April 22, 2014. In this filing, she requested an extension until June 2, 2014, to respond to Defendants' discovery requests on the grounds the interrogatories raised complex and laborious questions about other persons present at the arrest. Plaintiff also requested an extension of time to respond to requests for admissions served on her which she believed were due April 10, 2014.


A. Rule 26(a).

Rule 26(a)(1)(A) of the Federal Rules of Civil Procedure requires parties to make initial disclosures "without awaiting a discovery request." Rule 26(a)(1)(A)(iii) requires a plaintiff to provide "a computation of each category of damages claim" and make documents or other evidentiary material on which the computation was based available for inspection and copying. According to the advisory committee note to Rule 26, this requirement is "the functional equivalent of a standing Request for Production under Rule 34." Fed.R.Civ.P. 26 advisory committee's note to 1993 Amendment.

Rule 26(e)(1) requires a party making initial disclosures to "supplement or correct its disclosures or responses... in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and that the additional or corrective information has not otherwise been known to the other parties during the discovery process or in writing." Fed.R.Civ.P. 26(e)(1). The advisory committee's note to the 1993 Amendment indicate that "a major purpose" of the Rule 26(a) initial disclosure requirement "is to accelerate the exchange of basic information about the case and to eliminate the paperwork involved in requesting such information." Id.

A party who fails to comply with its initial disclosure requirements and duty to timely supplement or correct disclosures or responses may not use any information not disclosed or supplemented "to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 27(c)(1). Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). A party facing sanctions under Rule 37(c)(1) for failing to make its initial disclosures or timely supplement or correct incomplete or incorrect responses bears the burden of establishing that its failure to disclose the required information was substantially justified or is harmless. Torres v. City of L.A., 548 F.3d 1197, 1213 (9th Cir. 2008).

B. Rule 16(f).

Rule 16(f) of the Federal Rules of Civil Procedure authorizes the court to impose sanctions on a party's motion or on its own motion, including any sanction authorized by Rule 37(b)(2)(A)(ii-vii), if a party or its attorney fails to obey a scheduling order or other pretrial order. Id. Sanctions for failure to obey a discovery order include, among other things, striking a party's pleadings in whole or in ...

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