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Case 1:05-Cv-01527-OWW -TAG Document 27 Filed 08/23/06 Page 1 of 4 Case 1:05-cv-01527-OWW -TAG Document 27 Filed 08/23/06 Page 1 of 4 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 UNITED STATE OF AMERICA, for the use CASE NO. CV F 05-1527 OWW LJO of EXCELSIOR ELEVATOR, INC., 11 Plaintiff, ORDER ON PLAINTIFF’S MOTION TO 12 COMPEL INTERROGATORY RESPONSES vs. AND DOCUMENT PRODUCTION 13 CONSTRUCTION CONCEPTS, INC. et al, 14 Defendant. 15 / 16 Plaintiff moves to compel defendant Construction Concepts, Inc. and defendant Safeco Insurance 17 Co. to answer interrogatories and requests for production of documents. Plaintiff also asks for $975 in 18 sanctions. No timely opposition has been filed pursuant to Local Rule 37-251. Therefore, the hearing 19 set for August 25, 2006 was vacated and the matter was hereby submitted on the pleadings. Having 20 considered the moving papers, as well as the Court’s file, the Court issues the following order. 21 FACTUAL AND PROCEDURAL BACKGROUND 22 A subcontract was signed between Plaintiff and Defendant to take out an old elevator and install 23 a new elevator, elevator piston (underground) at the Naval Facilities Eng. Command, China Lake; to do 24 so, a bigger hole was needed but after opening up the shaft, an old piston was leaking underground and 25 extra work (environmental report, clean up, extended monitoring) was required. Extended time was 26 needed to complete work due to discovery of changed conditions. Plaintiff did the work and has not 27 been fully paid. 28 Defendants claim they are entitled to an offset for delay damages caused by Plaintiff’s late 1 Case 1:05-cv-01527-OWW -TAG Document 27 Filed 08/23/06 Page 2 of 4 1 completion of work. As to the claim for extended monitoring, this was work already covered by the 2 original contract or a previous change order; or alternatively was not approved by defendant as to cost 3 or service at any time and is therefore not recoverable. 4 ANALYSIS & DISCUSSION 5 Discovery Standard 6 Parties seeking discovery are entitled to all information "reasonably calculated to lead to the 7 discovery of admissible evidence." F.R.Civ.P. 26(b)(1). 8 Compelling Interrogatory Responses 9 The party answering interrogatories must furnish “such information as is available to the party.” 10 F.R.Civ.P. 33(a). F.R.Civ.P. 33(b)(1) requires interrogatories to be answered “separately and fully in 11 writing under oath, unless it is objected to, in which event the objecting party shall state the reasons for 12 objection and shall answer to the extent the interrogatory is not objectionable.” Interrogatory answers 13 must be “signed by the person making them, and the objections signed by the attorney making them.” 14 F.R.Civ.P. 33(b)(2). The propounding party may seek an order to compel further responses regarding 15 “an objection to or other failure to answer an interrogatory.” F.R.Civ.P. 33(b)(5). 16 “It is well established that a failure to object to discovery requests within the time required 17 constitutes a waiver of any objection.” Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 18 1473 (9th Cir. 1992) (citing Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981)). The failure to 19 respond to interrogatories “may not be excused on the ground that the discovery sought is objectionable 20 unless the party failing to act has a pending motion for protective order.” F.R.Civ.P. 37(d). An “evasive 21 or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or 22 respond.” F.R.Civ.P. 37(a)(3). 23 The interrogatories consist of 21 questions that ask defendants to identify facts, persons with 24 knowledge, and documents related to the claims in the case. The first set of interrogatories propounded 25 is reasonable. 26 No response has ever been served on plaintiff. Defendants make no attempt to explain their 27 failure to respond to and disregard of plaintiff’s legitimate discovery. Plaintiff is entitled to complete, 28 straightforward answers, without objections, to the interrogatories. 2 Case 1:05-cv-01527-OWW -TAG Document 27 Filed 08/23/06 Page 3 of 4 1 Compelling Document Production 2 F.R.Civ.P. 34(a) permits a requesting party to ask for documents “which are in the possession, 3 custody or control of the party upon whom the request is served.” Rule 34(b) states that “The request 4 shall set forth, either by individual item or by category, the items to be inspected, and describe each with 5 reasonable particularity.” Rule 34(b) also requires a written response to a request for production to 6 “state, with respect to each item or category, that inspection and related activities will be permitted as 7 requested, unless the request is objected to, in which event the reasons for the objection shall be stated.” 8 A party is obliged to produce all specified relevant and nonprivileged documents or other things which 9 are in its “possession, custody or control” on the date specified in the request. F.R.Civ.P. 34(a); Norman 10 Rockwell Int’l Corp. v. H. Wolfe Iron & Metal Co., 576 F.Supp. 511, 512 (W.D. Pa. 1983). The 11 propounding party may seek an order for further disclosure regarding “any objection to or other failure 12 to respond to the request or any part thereof, or any failure to permit inspection requested.” Fed.R.Civ.P. 13 34(b). 14 The documents requests consist of 41 requests asking for construction project documents, and 15 documents related to defendants’ 27 affirmative defenses. No response to the Request and no document 16 production have been provided. The Requests are appropriate and therefore should be compelled to be 17 produced. 18 Request for Sanctions 19 Plaintiff requests $975 in sanctions against both defendants jointly and severally. The sanctions 20 are for 5 hours for attorney time in preparing this motion, including one hour of time for the hearing on 21 the motion, at $195 per hour. 22 If a motion to compel discovery responses is granted, “the court shall, after affording an 23 opportunity to be heard, require the party . whose conduct necessitated the motion or the party or 24 attorney advising such conduct or both of them to pay to the moving party the reasonable expenses 25 incurred in making the motion, including attorney’s fees, unless the court finds that the motion was filed 26 without the movant’s first making a good faith effort to obtain the . discovery without court action . 27 . or that other circumstances make an award of expenses unjust.” F.R.Civ.P. 37(a)(4)(A). The burden 28 is on the losing party to affirmatively demonstrate that its position was substantially justified. F.R.Civ.P. 3 Case 1:05-cv-01527-OWW -TAG Document 27 Filed 08/23/06 Page 4 of 4 1 37(a)(4), Advisory Comm. Notes (1970). 2 Plaintiff ignored defendants’ attempts to obtain interrogatory responses without this Court’s order 3 to compel. No circumstances appear to render unjust an award of plaintiff’s expenses for its motion to 4 compel. The hourly rate and number of hours are reasonable, except only 4 hours of time will be 5 awarded because a hearing will be unnecessary in this motion. Sanctions are $780. 6 CONCLUSION 7 For the foregoing reasons, the Court GRANTS plaintiff’s motion to compel as follows: 8 1. To ORDER defendant Construction Concepts, Inc. and defendant Safeco Insurance Co., 9 no later than 10 days from the service of this order, to serve complete, straightforward answers, without 10 objections, to plaintiff’s interrogatories; and 11 2. To ORDER defendant Construction Concepts, Inc. and defendant Safeco Insurance Co., 12 no later than 10 days from the service of this order, to serve complete, straightforward responses, without 13 objections, and produce documents in response to plaintiff’s request for production of documents; and 14 3. To GRANT the request for sanctions against defendant Construction Concepts, Inc. and 15 defendant Safeco Insurance Co., jointly and severally, in the amount of $780 payable within 30 days 16 from the service of this order. 17 IT IS SO ORDERED. 18 Dated: August 22, 2006 /s/ Lawrence J. O'Neill b9ed48 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 4.
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