Opinion
No. 2:10-cv-760-EFB P
09-15-2014
JON CHRIST, Plaintiff, v. R. BLACKWELL, et al., Defendants.
ORDER
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C § 1983. Currently pending before the court are plaintiff's motion for sanctions and a default judgment (ECF No. 139), a flurry of filings regarding whether defendants have complied with this court's order regarding plaintiff's witnesses (ECF Nos. 141, 144, 146, 149, 150), and some miscellaneous filings by plaintiff regarding discovery (ECF Nos. 151, 152).
The case is before the court pursuant to the parties' consent. Dckt. Nos. 4, 14, 74; 28 U.S.C. § 636; E.D. Cal. Local Rules, Appx. A, at (k)(1)-(2).
I. Motion for Default Judgment and Sanctions
Plaintiff alleges that defendant Roszko failed to timely respond to the complaint. ECF No. 139. Defendant Roszko waived service, which was mailed February 25, 2014. ECF No. 135. Accordingly, he had 60 days from that date to respond, making his response due on or before Monday, April 28, 2014. Fed. R. Civ. P. 4(d)(3). Defendant Roszko concedes that his answer was filed late on May 7, 2014, and attributes this fact to a calendaring error. ECF No. 142. Defense counsel's secretary declares that she mistakenly calendared the date based on the day defendant Roszko signed the waiver rather than the date service was mailed. ECF No. 142-1.
Rule 55 of the Federal Rules of Civil Procedure requires the court clerk to enter default against a party who "has failed to plead or otherwise defend[.]" Thereafter, the court may enter a default judgment against such a party if the court concludes that certain factors favor entry of default judgment. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Those factors are:
(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the possibility of a dispute concerning material facts, (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.Id. Here, defendant Roszko filed his answer less than two weeks late and has therefore not failed to plead or otherwise defend. Rather, defendant Roszko's answer was late due to a simple calendaring error. Even if defendant Roszko's late filing of his answer were construed as a failure to defend, the Eitel factors do not favor entry of default judgment against him. Plaintiff has shown no prejudice from the late answer, the merits of the action have yet to be evaluated, plaintiff seeks over $1 million in damages from defendant Roszko, and the answer was filed late due to defense counsel's secretary's excusable neglect. There is no compelling reason not to allow plaintiff's claim against defendant Roszko to be litigated on the merits. Accordingly, plaintiff's request for default judgment is denied.
Plaintiff also seeks sanctions against defendant Roszko under Federal Rule of Civil Procedure 11(c) for filing his answer late. ECF No. 139. That motion is denied. Rule 11 authorizes sanctions where a party has violated Rule 11(b)'s requirements regarding integrity in pleadings and motions. Plaintiff does not identify any conduct on the part of defendant Roszko or his counsel that violates Rule 11(b). Simply filing the answer late is not sanctionable conduct as defined by that rule. Fed. R. Civ. P. 11(b) (providing that, by signing a court filing, a party or attorney makes certain representations to the court regarding the integrity of the filing). Further, plaintiff's request for sanctions does not comply with Rule 11(c)(2which requires that a motion for sanctions be made separately from any other motion (plaintiff's motion additionally moves for default judgment). That rule also required plaintiff to serve the motion on defendant Roszko to provide him 21 days to withdraw the challenged filing, which plaintiff failed to do. Plaintiff's request for sanctions is therefore denied.
II. Status of Plaintiff's Communication with Witnesses
On April 23, 2014, the court ordered the California Department of Corrections and Rehabilitation (CDCR) to "allow plaintiff correspondence with inmates Dillinger and Rossignon regarding facts relevant to this suit and to solicit declarations describing those facts and whether the witnesses will voluntarily testify at trial." ECF No. 138 at 2. The court further ordered CDCR to provide plaintiff with the last known addresses of his formerly incarcerated witnesses and ordered defense counsel to meet and confer with plaintiff "to devise a workable means by which plaintiff can communicate with his formerly incarcerated witnesses to arrange for their appearance and testimony at trial." Id. at 2-3. Defense counsel responded that, in a phone call, he told plaintiff that he could obtain the last known addresses of his formerly incarcerated witnesses from the institution's litigation coordinator. ECF No. 141 at 2. Counsel declares that he also told plaintiff that he could submit interrogatories to his incarcerated witnesses to the litigation coordinator, which would be reviewed by prison officials and possibly CDCR counsel before being forwarded to the witnesses. Id. According to defense counsel, plaintiff became belligerent so counsel ended the call. Id. Nevertheless, defense counsel provided the litigation coordinator with the list of plaintiff's formerly incarcerated witnesses and asked her to provide their last known addresses to plaintiff as soon as possible. Id. He also "provided written instructions for Plaintiff to communicate with incarcerated witnesses Rossignon and Dillinger." Id.
Plaintiff disputes defense counsel's characterization of his behavior during the call and accuses defense counsel of failing to meet and confer in good faith. ECF Nos. 144, 146. Plaintiff states that defense counsel told him he would review plaintiff's communications with his incarcerated witnesses. Id. Plaintiff objects to defense counsel reviewing his communications with his incarcerated witnesses and asks the court to perform that function and then forward the communications directly to the inmates. Id.
It is unclear from these filings whether plaintiff has been given addresses for witnesses DeJarlais, Pizzarusso, and Schuknecht, who are no longer incarcerated. Plaintiff has been given an address for Rossignon, who has been paroled. ECF No. 150. Accordingly, plaintiff's motion for Rossignon's location (ECF No. 149) is denied as moot. However the parties are ordered to inform the court whether the remaining addresses have been given to plaintiff.
As for plaintiff's communications with Dillinger, the sole remaining incarcerated witness, the court's order requiring prison officials to allow such communication was premised on plaintiff's representation that he had no problem with prison officials reviewing those communications for security purposes. ECF Nos. 133 at 3; 124 at 2. The court notes, however, that the order does not authorize defense counsel or counsel for CDCR to review those communications and defendants have provided no justification to the court for such review. Accordingly, CDCR shall allow plaintiff to communicate with Dillinger as previously ordered, subject to review only by prison officials to ensure institutional security.
III. Plaintiff's Discovery-Related Motions
Plaintiff has filed two motions regarding discovery matters. In the first, plaintiff complains that defendants are issuing improper discovery requests to harass him and asks for a "cease-and-desist order." ECF No. 151. Plaintiff challenges defendant Roszko's interrogatories and deposition notice with request for production of documents as requesting information that has already been provided or that pertains to defendants other than Roszko. Id.
On June 2, 2014, the court issued an amended discovery and scheduling order to allow discovery by and to newly-served defendant Roszko. ECF No. 145. That order limited discovery going forward to plaintiff and defendant Roszko as is relevant to plaintiff's claims against Roszko, as plaintiff and the remaining defendants had completed discovery with respect to plaintiff's other claims. Id. at 1. To the extent that the challenged discovery requests pertain to plaintiff's claims against defendant Roszko and are not otherwise improper, plaintiff must respond to them. The court has reviewed the challenged discovery, however, and it appears that some requests are outside the scope of the amended discovery order. For example, defendants request that plaintiff produce at his deposition documents relevant to his claims against all defendants, not just his claims against Roszko. ECF No. 151 at 6-9. Additionally, defendants' special interrogatory number 3, set two, requests information pertaining to plaintiff's claim against defendant Holland. Id. at 21. The court further admonishes the parties that the current round of discovery is limited to questions necessary to develop the case as it pertains to defendant Roszko and should not be used to serve discovery requests that duplicate those to which plaintiff has already responded.
The court construes plaintiff's request for a "cease-and-desist order" as a motion for a protective order under Federal Rule of Civil Procedure 26(c). However, that rule requires that the moving party include with the motion a certification that he has conferred or attempted to confer in good faith with the other parties in an attempt to resolve the dispute without court action. The instant filing includes no such certification, and thus plaintiff's current request for court action will be denied without prejudice. Plaintiff may proceed in a number of ways. He renew his request for a protective order by filing the certification required by Rule 26(c) after conferring or attempting to do so, he may respond to discovery requests he feels are improper with an objection, or he may produce the information and/or documents requested.
In his second filing, plaintiff requests that the court compel defendants to furnish evidence of a statement made in settlement conference. ECF No. 152. Plaintiff states that the court told defense counsel in a December 20, 2012 settlement conference "to find something that states that 'Lifers are not denied' parole behind CDC 115's and 128's." Id. According to plaintiff, this information was never provided, and he asks the court to compel defendants to respond. The court can find no order to defendants to produce the evidence described by plaintiff. To the extent plaintiff believes that the statement is false and the statement is relevant to his case, plaintiff will have the option of presenting his evidence and view of the facts when the case advances to dispositive motions and/or trial. And, as defendants note, statements allegedly made by them at the settlement conference are not admissible to prove their liability. Fed. R. Evid. 408(a)(2). Plaintiff's second request will therefore be denied.
IV. Order
Accordingly, it is hereby ORDERED that:
1. Plaintiff's motion for default judgment and sanctions (ECF No. 139) is denied;DATED: September 15, 2014.
2. Plaintiff's request for an order for cease and desist (ECF No. 151) is denied without prejudice;
3. Plaintiff's request for an order for defendant to respond to what this court stated during settlement conference (ECF No. 152) is denied;
4. The parties shall inform the court within 21 days of the date of this order whether plaintiff has received addresses for witnesses DeJarlais, Pizzarusso, and Schuknecht;
5. Plaintiff's motion for the location of former inmate Rossignon (ECF No. 149) is denied;
6. CDCR (and any relevant institution within the department's purview) shall allow plaintiff correspondence with inmate Dillinger regarding facts relevant to this suit and to solicit declarations describing those facts and whether the witness will voluntarily testify at trial, subject to review only by prison officials to ensure institutional security; and
7. In the event that counsel for defendants is not acting on behalf of CDCR, defense counsel shall provide a copy of this order to CDCR counsel.
/s/_________
EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE