United States District Court, D. Nevada
REPORT AND RECOMMENDATION MOTION FOR SANCTIONS [ECF
NO. 12], MOTION TO DEEM ADMITTED [ECF NO. 16], COUNTERMOTION
TO WITHDRAW [ECF NO. 20]
CAM
FERENBACH, UNITED STATES MAGISTRATE JUDGE
Before
the Court is Plaintiff Robert Browne's Motion for
Sanctions for Spoliation of Evidence, (ECF No. 12),
Plaintiff's Motion to Deem Requests for Admissions
Admitted (ECF No. 16), and Defendant Dolgen Midwest's
Countermotion to Plaintiff's Motion to Deem Request for
Admissions Admitted for Relief Under Fed.R.Civ.P. 36(b) (ECF
No. 20). For the reasons discussed below, Plaintiff's
motions should be denied and Defendant's motion should be
granted.
BACKGROUND
Plaintiff
slipped and fell inside Defendant's Dollar General store
in January 2016. (ECF No. 12 at 1). “On October 29,
2018, Plaintiff served the Defendant with requests for
production of documents that requested copies of any
documents that reflect any maintenance and/or inspections to
the floors in the public areas of the subject premises that
took place on the date of the subject incident” and
“sweep sheets.” (Id. at 2). Defendant
responded that it was “attempting to locate any
documents responsive to th[ese] request[s]. Defendant will
supplement th[ese] response[s] if any responsive documents
are located.” (ECF No. 12-2 at 4, 7). Defendant failed
to provide further responses to either request before
discovery closed on February 11, 2019. (ECF No. 8; ECF No. 12
at 2). Also on October 29, 2018, Plaintiff served requests
for admission on Defendant. (ECF No. 16 at 4-5). Responses
were due on December 3, 2018, but were not served
“until at least December 5th but likely
later than that as the Plaintiff did not receive the
responses until December 12, 2018.” (Id. at
6).
Plaintiff
now asserts that, “It is believed that these documents
[reflecting any maintenance and/or inspections to the floors
and sweep sheets] have either been destroyed or otherwise
withheld for an improper purpose.” (ECF No. 12 at 2).
Plaintiff moves for sanctions, arguing that “a
mandatory presumption that the documents requested by the
Plaintiff [are] adverse to Defendant Dollar General's
Position is…appropriate.” (Id. at 4).
In response to the motion for sanctions, Defendant states
that it has now been able to locate a store safety check
report and it updated its responses to Plaintiff's
request for production of documents on April 16, 2019. (ECF
No. 17 at 1; ECF No. 17-1). Defendant argues that
“[t]his is the only document which [Defendant] has
which was responsive to [Plaintiff's] request for
maintenance or sweep log records, ” so no spoliation
has taken place. (ECF No. 17 at 3). Plaintiff did not file a
reply to Defendant's response.
Plaintiff
also moves to deem the requests for admission admitted due to
Defendant's untimely response. (ECF No. 16 at 6). In
response, Defendant acknowledges that its response was two
days late. (ECF No. 18 at 1-2). Defendant countermoves to
withdraw the admissions because they would go to the merits
of the case and Plaintiff did not move to deem the admissions
admitted until almost four months after he received the
discovery response. (ECF No. 20 at 3-4). Plaintiff did not
file a response to Defendant's countermotion.
MOTION
FOR SPOLIATION SANCTIONS
It does
not appear that Defendant destroyed any evidence in this
case. However, Defendant failed to produce a document
responsive to Plaintiff's request for production of
documents until after the close of discovery and after a
motion for summary judgement (ECF No. 11) had been filed. The
Court may sanction a party that “fails to obey a
scheduling or other pretrial order.” Fed.R.Civ.P.
16(f).
The
Court finds that sanctions are not justified in this case.
Defendant's untimely disclosure was an oversight rather
than an action intending to frustrate Plaintiff's ability
to litigate the case. Defendant produced many other items
during discovery, including an incident report, surveillance
footage, and relevant policies and procedures. (ECF No. 17 at
2). Plaintiff never reached out to Defendant regarding
Defendant's efforts to locate other documents responsive
to Plaintiff's discovery requests before filing the
motion for sanctions.
Plaintiff
now has the documents he believed to be destroyed or withheld
for an improper purpose. Plaintiff did not file a reply after
receiving these documents to indicate to the Court how the
timing of the documents' production impacts his case. The
Court notes that discovery has closed and there is a pending
motion for summary judgment in this case. While
Defendant's untimely disclosure may impact the
Court's analysis regarding whether further discovery is
needed in this case, sanctioning Defendant is not warranted
at this time.
Therefore,
Plaintiff's motion for sanctions (ECF No. 12) should be
denied.
MOTION
TO DEEM ADMITTED AND COUNTERMOTION TO WITHDRAW
A
matter is deemed admitted if it is not responded to in a
timely way. Fed.R.Civ.P. 36(a)(3). “[T]he court may
permit withdrawal or amendment [of an admission] if it would
promote the presentation of the merits of the action and if
the court is not persuaded that it would prejudice the
requesting party in maintaining or defending the action on
the merits. Fed.R.Civ.P. 36(b). In addition, under LR 7-2(d),
“[t]he failure of an opposing party to file points and
authorities in response to any motion…constitutes a
consent to the granting of the motion.”
Because
Plaintiff failed to file a response to Defendant's
countermotion to withdraw its admissions, Plaintiff has
consented to the Court granting the countermotion. In
addition, the Court finds that allowing Defendant to withdraw
its admissions will promote the presentation of the merits of
the action and will not prejudice Plaintiff. Plaintiff
received the response to the requests for admission on
December 12, 2018, almost two months before the close of
discovery. (ECF ...