McCommon v. Carlisle Construction Materials, LLC

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 ROBERT McCOMMON, No. 2:22-cv-00728 DC AC 12 Plaintiff, 13 v. ORDER 14 CARLISLE CONSTRUCTION MATERIALS LLC, et al., — 15 — Defendants. — 16 — 17 This matter is before the court pursuant to E.D. Cal. R. (“Local Rule”) 302(c)(1), on 18 plaintiff’s fourth motion to compel discovery and for sanctions. ECF No. 52. In light of the 19 impending discovery deadline and defendants’ history of failing to participate in discovery in this 20 case, hearing on the motion was advanced to June 11, 2025. ECF No. 53. The parties appeared 21 before the undersigned via Zoom, with Emma E. Geesaman appearing on behalf of plaintiff and 22 Sara A. Moore appearing on behalf of defendants. For the reasons set forth below, the motion is 23 GRANTED. 24 I. Relevant Background 25 This putative wage and hour class action was removed from state court on April 27, 2022. 26 ECF No. 1. The operative First Amended Complaint was filed June 30, 2022. ECF No. 10. 27 After multiple stipulated extensions of time, defendants filed their answer on October 14, 2022. 28 ECF No. 20. On March 21, 2023, plaintiff moved to compel responses to his Requests for 1 Production of Documents, Set One. ECF No. 25. Pursuant to the Federal Rules, the responses 2 were due on February 17, 2023. ECF No. 25 at 4. That motion was denied without prejudice for 3 failure to meet and confer. ECF No. 27. On July 17, 2023, the court signed the parties’ 4 stipulation to continue the discovery cutoff to October 14, 2024. ECF No. 29. On December 19, 5 2023, the court signed a second stipulation to continue the discovery cutoff to April 21, 2025, 6 pending a post-mediation status conference. ECF No. 32. The stipulation reads in its entirety, 7 “Pursuant to the stipulation of the parties, the non-expert discovery cut-off is hereby continued to 8 April 21, 2025.” Id. at 2. 9 Plaintiff brought a second motion to compel, without a joint statement pursuant to Local 10 Rule 302(c)(1) due to defendants’ total failure to respond to discovery, on September 12, 2024. 11 ECF No. 34. Defendants did not respond to the motion, and the court issued an order to show 12 cause. No. 38. Defendants responded to the order to show cause stating their failure to 13 participate in production was due to pending settlement negotiations. ECF No. 40. In granting 14 the motion to compel, the court explained that this was an inadequate response and that “counsel 15 should be well aware that while parties may make any agreements they wish outside of court, 16 such agreements are generally not enforceable by the court” and that discovery is expected to 17 proceed apace during any settlement negotiations in the absence of a court order staying 18 discovery. ECF No. 41 at 3. The court awarded plaintiff attorneys fees and sanctioned defense 19 counsel $500. Id. at 5. The court found that any objections had been waived and ordered 20 defendants to “produce all responsive, non-privileged documents within 14 days of this order.” 21 Id. 22 In January of 2025, the district judge accepted the parties’ stipulation to extend the 23 discovery deadline to July 21, 2025. ECF No. 46. Plaintiff filed a third motion to compel on 24 April 4, 2025. ECF No. 47. In this motion, plaintiff asserted that defendants had not produced 25 any documents. ECF No. 47-1 at 4, ¶14. Defendants failed to respond to the motion. The court 26 issued a second order to show cause, in which it explained that “[i]t is very unusual for the court 27 to encounter a situation in which a party represented by counsel not only completely fails to 28 participate in discovery in the first instance, but also fails to respond to a motion to compel 1 discovery, then fails to comply with the order issued compelling production, and then fails to 2 respond to a second motion to compel discovery which seeks to enforce the initial court order. It 3 is particularly disturbing for defendants to fail to participate in discovery after counsel has already 4 been sanctioned once for failure to participate.” ECF No. 49 at 2. The court explained that this 5 behavior may lead to “significant sanctions” on defense counsel. Id. On May 12, 2025, Ms. 6 Moore submitted a declaration in response to the order to show cause, stating that the failure to 7 comply with discovery obligations was due to unexpected personal health issues (ECF No. 50 at 8 2, ¶ 3), changes in associates handling the matter (Id. at ¶ 4), and calendaring errors (Id. at ¶ 5). 9 Ms. Moore requested a deadline of 10 days for defendants “to immediately and fully respond to 10 all pending discovery and proceed expeditiously with the litigation without further delay.” Id. at 11 ¶ 7. 12 Taking Ms. Moore at her word, the court issued a minute order discharging the order to 13 show cause and giving Ms. Moore her requested 10 days to “fully and completely respond” to 14 discovery, without issuing any additional sanctions. ECF No. 51. The court did warn Ms. Moore 15 that any future failure to comply with discovery obligations would result in the imposition of 16 monetary sanctions. Id. The 10 day deadline passed on May 23, 2025. 17 II. Motion 18 On June 4, 2025, plaintiff filed the instant motion to compel, attaching the written 19 discovery responses they received from defendants, which are replete with objections and 20 statements that documents will be forthcoming at some unspecified point in the future. ECF No. 21 52-8. Plaintiff’s counsel Roman Shkodnik submitted a statement stating that he reached out to 22 Ms. Moore on May 28, 2025 to request her availability to meet and confer regarding defendants’ 23 deficient responses, and Ms. Moore never responded. ECF No. 52-1 at 5. Plaintiff’s counsel 24 stated that as of June 3, 2025, defendants “have not produced any documents and have failed to 25 comply with the Court’s orders.” Id. The motion was set for hearing on June 18, 2025. ECF No. 26 52. Given defendants’ history in this litigation, the court advanced the hearing date June 11, 27 2025, and ordered defendants to respond to the motion by June 9, 2025. ECF No. 53. Defendants 28 opposed the motion (ECF No. 54), and the parties appeared before the court on June 11, 2025. 1 III. Discussion 2 A. Compelled Production of Documents 3 The discovery disputes in this case have never presented any legal questions. This case 4 has been before the undersigned four times and has necessitated two orders to show cause for one 5 reason only: defendants’ abject failure to participate in discovery and to respond to the motions 6 necessitated by their failure to meet their discovery obligations. Defendants’ objections have 7 already been deemed waived and overruled. ECF No. 41, 51. The court confirms here again that 8 all of defendants’ objections are waived and overruled. 9 The court confirmed at the hearing on the motion that, despite objecting on the basis of 10 privilege, defendants have never submitted a privilege log specifying what purportedly privileged 11 documents exist and are being withheld. Privilege can be waived where a party fails to produce a 12 privilege log within 30 days of a request for production. Burlington N. & Santa Fe Ry. Co. v. 13 U.S. Dist. Ct. for Dist. of Mont., 408 F.3d 1142 , 1149 (9th Cir. 2005). In Burlington, the 9th 14 Circuit found that a privilege log produced 5 months late was fairly egregious – here, it’s been 15 over two years since the requests for production were issued and just under eight months since the 16 order compelling production. The undersigned finds that defendants have waived all objections 17 based on privilege and/or work product doctrine. To be abundantly clear: the court finds that 18 defendants must produce all responsive documents and submit sufficient answers to discovery 19 requests. Defendants may raise no objections, and they may withhold nothing. While defendants 20 may have had legitimate objections and/or claims of privilege, they have unequivocally waived 21 their right to rely on them. 22 B. Sanctions 23 Plaintiff seeks sanctions pursuant to Fed. R. Civ. P 37. ECF No. 34-1 at 4; Hilao v. Estate 24 of Marcos, 103 F.3d 762, 764-765 (9th Cir. 1996) (finding that a party who fails to respond at all 25 to interrogatories or requests for production is subject to sanctions). There is no requirement that 26 failure to respond be willful before sanctions may be imposed. Lew v. Kona Hosp., 754 F.2d 27 1420, 1426 (9th Cir. 1985) (“Even a negligent failure to allow reasonable discovery may be 28 punished.”). Here, the court finds sanctions are appropriate in the amount of $1,000.00, payable 1 to the court by defense counsel and not charged to defendants. 2 Plaintiff also seeks a fee award. A party who prevails on a motion to compel is entitled to 3 its expenses, including reasonable attorney fees, unless the losing party was substantially justified 4 in opposing the motion or other circumstances make such an award unjust. Fed. R. Civ. P. 5 37(a)(5). A fee award is clearly appropriate here; defendants were not substantially justified in 6 their discovery failures. To the contrary, defendants have failed to comply with court orders 7 requiring production. 8 “The party seeking fees bears the burden of documenting the hours expended in the 9 litigation and must submit evidence supporting those hours and the rate claimed.” Welch v. 10 Metro. Life Ins. Co., 480 F.3d 942, 945-46 (9th Cir. 2007). Recovery should not exceed the 11 expenses and fees that were reasonably necessary to resist the offending action. Id. at 1185. 12 Under the “lodestar” approach for assessing reasonable attorney’s fees, the number of hours 13 reasonably expended is multiplied by a reasonable hourly rate. Camacho v. Bridgeport Fin., Inc., — 14 — 523 F.3d 973, 978 (9th Cir. 2008). A reasonable hourly rate is determined by identifying the 15 relevant legal community (the forum where the district court sites) and the prevailing market rate 16 in that community for similar services by lawyers of reasonably comparable skill. Id. at 979-81 . 17 The court has already held that the reasonable hourly rate in this case is $200. ECF No. 18 41 at 5. Plaintiff seeks 4 hours for meet and confer efforts and preparation of the motion to 19 compel. ECF No. 52-1 at 6. Plaintiff initially sought an additional 4 hours for anticipated work 20 in preparing a reply brief, as well as for attending the hearing. Id. The court notes that this 21 request is improperly block billed, and that plaintiff did not submit a reply brief. The court will 22 award plaintiff fees for 4 hours of work at the rate of $200.00, but notes that in the future, 23 plaintiff must include a billing statement in order to document his entitlement to fees. 24 Additionally, plaintiff should calculate his request at the $200.00 per hour rate. The court awards 25 plaintiff $800.00 in fees associated with the motion to compel. 26 Finally, plaintiff briefly requests terminating sanctions for defendants’ failure to 27 participate in discovery. ECF No. 52 at 8. This request is inadequately briefed. It is therefore 28 denied without prejudice. 1 IV. Conclusion 2 For the reasons explained above, it is hereby ordered as follows: 3 a. Plaintiff's motion to compel (ECF No. 52) is GRANTED and the court expressly 4 rules that all of defendants’ objections and claims of privilege and/or work product 5 doctrine protection are waived; 6 b. Defendants must produce all documents responsive to Plaintiff's Requests for 7 Production of Documents, Set One, no later than close of business on June 18, 8 2025; 9 c. Defense Counsel is ORDERED to pay sanctions to the court in the amount of 10 $1,000.00 within 5 days of this order. Sanctions must be paid by defense counsel 11 and may not be charged to the client; 12 d. Defendants are ORDERED to pay plaintiff $800.00 in attorney’s fees within 5 13 days of the order; and 14 e. Plaintiff shall file any motion for terminating sanctions based on defendants’ 15 failure to comply with this order compelling production no later than June 25, 16 2025. 17 IT IS SO ORDERED. 18 | DATED: June 11, 2025 - 19 Atttarr—Chore ALLISON CLAIRE 20 UNITED STATES MAGISTRATE JUDGE — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —