Escalante v. City of Delano

Full title: HECTOR O. ESCALANTE, Plaintiff, v. CITY OF DELANO, et al., Defendant

Court: United States District Court, E.D. California

Date published: Aug 30, 2006

No. CV-F-05-689 AWI/DLB (E.D. Cal. Aug. 30, 2006)

Opinion

No. CV-F-05-689 AWI/DLB.

August 30, 2006

ORDER DENYING PLAINTIFF'S MOTION TO STRIKE ANSWER, FOR ADDITIONAL MONETARY SANCTIONS OR OTHER EVIDENTIARY SANCTIONS (Doc. 27), DIRECTING CLERK OF COURT TO RE-SERVE DOC. # 24 AND VACATING ORAL ARGUMENT SET FOR SEPTEMBER 11, 2006

ANTHONY ISHII, District Judge

On May 16, 2006, Magistrate Judge Beck filed an Order Granting Plaintiff's Motion to Compel (hereinafter referred to as the May 16 Order). By this Order, plaintiff's motion to compel further responses to discovery was granted, defendants being ordered to provide the further responses within 20 days of service of the Order. In addition, the Order granted plaintiff's motion for sanctions, the Order stating: "Within 10 days of this Order, Plaintiff shall submit a declaration in support of the request for sanctions detailing the number of hours spent on this motion. Defendants may respond to the declaration within 10 days thereafter."

On August 9, 2006, plaintiff filed a Motion to Strike Answer, For Additional Monetary Sanctions or Other Evidentiary Sanctions based on defendants' failure to comply with the May 16 Order.

Plaintiff's motion is denied. The official docket in this action establishes that defendants' counsel was not served with the May 16 Order. This failure of service was not the fault of defendants' counsel but, rather, resulted from a malfunction in the CM/ECF software. This malfunction prevented automatic e-mail service of court orders on defendants' counsel by the Clerk's Office. This malfunction has now been corrected and the Clerk of the Court will be directed to re-serve the May 16 Order.¹ Because defendants' failure to timely comply with the requirements of the May 16 Order was not caused by defendants' counsel's misconduct, plaintiff's request for additional sanctions, including terminating sanctions, is not appropriate.

1 Plaintiff's counsel provided a copy of the May 16 Order to defendants' counsel on July 25, 2006. The court orders re-service of the May 16 Order so that the parties may comply with its requirements as set forth in the May 16 Order, including substantiation of plaintiff's attorneys' fees, the amount of which has not yet been determined by the Magistrate Judge because of plaintiff's failure to submit the required declaration to the Magistrate Judge.

ACCORDINGLY:

1. Plaintiff's Motion to Strike Answer, For Additional Monetary Sanctions or Other Evidentiary Sanctions is DENIED.

2. Oral argument set for September 11, 2006 is VACATED pursuant to Rule 78-230(h), Local Rules of Practice.

2. The Clerk of the Court is directed to re-serve document number 24 on the parties.

IT IS SO ORDERED.