Froilian Ramirez v. Select Portfolio Services, Inc., et al. Case No. ED CV 19-145-GW (SPx) United States District Court, C.D. California Filed June 10, 2019 Counsel Kimberly Carter, Deputy Clerk, Attorneys Present for Plaintiff: None Present None, Court Reporter / Recorder, None, Tape No., Attorneys Present for Defendant: None Present Pym, Sheri, United States Magistrate Judge Proceedings: (In Chambers) Order Granting In Large Part Defendant's Motion to Compel Initial Disclosures and Discovery Responses from Plaintiff [11] *1 On May 8, 2019, defendant Select Portfolio Servicing, Inc. (“SPS”) filed a motion to compel initial disclosures and discovery responses from plaintiff Froilian Ramirez to defendant's interrogatories and requests for production of documents, and impose monetary sanctions against plaintiff (docket no. 11). Defendant also requests that the court modify the current scheduling order. The motion is supported by the declaration of defense counsel Scott R. Laes (“Laes Decl.”) and exhibits. Plaintiff did not file any response to the motion. After reviewing the papers filed, the court found a hearing on the motion would not materially assist the court, and so took the hearing off calendar. Based on the papers filed, the court grants the motion insofar as plaintiff shall be compelled to make his initial disclosures, respond to defendant's discovery requests, and pay sanctions, for the reasons that follow. BACKGROUND Plaintiff Froilian Ramirez filed a Complaint in Riverside County Superior Court on November 20, 2018 alleging defendants committed numerous violations, including of California Civil Code § 2923.5 and the California Homeowner Bill of Rights when they foreclosed on his property in Coachella, California. See Notice of Removal (docket no. 1), Ex. 2 (“Complaint”). Defendant SPS is a loan servicing company that, along with co-defendants Mortgage Electronic Registration Systems, Inc. (“MERS”), U.S. Bank, the Wolf Firm, and 25 Doe defendants, were involved in the ownership, servicing, or foreclosure of plaintiff's home loan. See Mtn. to Compel at 1-2. All of plaintiff's claims arise under state law. See Compl. at 9-31. On January 24, 2019, defendants removed the case to federal court on the basis of diversity jurisdiction. Plaintiff has proceeded pro se in this action since it was removed to federal court. Defendants SPS, MERS, and U.S. Bank are represented by the same counsel, and the propounded discovery is for the benefit of defendants as a whole. Mtn. at 1. On February 28, 2019, defendants unilaterally filed a Rule 26(f) report under Fed. R. Civ. P. 26(f) after making multiple unsuccessful attempts to contact plaintiff. See Mtn. at 4-5; Rule 26(f) Report (docket no. 9). Plaintiff has also failed to provide his initial disclosures, which were due on March 7, 2019. Mtn at 4-5. On March 15, 2019, defendant SPS served plaintiff with its first set of Interrogatories and Requests for Production of Documents. Laes Decl. ¶ 2. Plaintiff's responses to these requests were due on April 19, 2019. Id. ¶ 3. Plaintiff did not serve his responses by this deadline, or at all. Id. On April 25, 2019, defendant SPS sent a meet and confer letter to plaintiff requesting a telephonic conference to discuss plaintiff's failure to serve his initial disclosures and respond to defendants' discovery requests. Id. ¶ 4, Ex. 2. In the letter, defendant SPS informed plaintiff he had waived his objections to the discovery requests. Id. Plaintiff received the meet and confer letter on April 29, 2019, but did not respond. Id. ¶ 5, Ex. 3. DISCUSSION *2 Under Local Rule 37-1, counsel for the parties are required to meet and confer regarding any discovery dispute in a good faith effort to eliminate the necessity for a motion or to eliminate as many of the issues as possible. L. R. 37-1. If both counsel are not located within the same county, the conference may take place telephonically. Id. Counsel for the opposing party must confer with counsel for the moving party within ten days after the moving party sends a letter requesting a conference. Id. As set forth above, defense counsel repeatedly attempted to meet and confer regarding the disputes at issue in this motion, but plaintiff failed to respond or otherwise meet his obligation, just as he has failed to meet his other discovery obligations, as discussed further below. Plaintiff Is Ordered to Make His Initial Disclosures Rule 26 of the Federal Rules of Civil Procedure requires that a party must, without awaiting a discovery request, provide initial disclosures to the other parties in the action. Fed. R. Civ. P. 26(a)(1)(A). These initial disclosures must include: (1) the contact information of each individual likely to have discoverable information that may be used to support the disclosing party's claims or defenses, and the subjects of that information, unless the use would be solely for impeachment; (2) a copy or description of all documents, electronically stored information, and tangible things that may be used to support the party's claims or defenses unless the use would be solely for impeachment; (3) a computation of damages; and (4) a copy of any insurance agreement that may satisfy all or part of a possible judgment. Fed. R. Civ. P. 26(a)(1)(A)(i)-(iv). A party must make these initial disclosures at or within 14 days of the parties' conference under Rule 26(f) unless otherwise provided by stipulation or court order, or unless a party objects during the Rule 26(f) conference. Fed. R. Civ. P. 26(a)(1)(c). Rule 26(f) further requires the parties to hold a conference as soon as possible, or at least 21 days before a scheduling conference is held or a scheduling order is due. Fed. R. Civ. P. 26(f). Plaintiff's initial disclosures were due on March 7, 2019. Defendant SPS estimates this date based on when the Rule 26(f) conference should have occurred – on February 21, 2019, 21 days before the scheduling conference. Mtn. at 4-5. Three months later, plaintiff still has not produced his initial disclosures. Plaintiff has offered no excuse for this failure, or for his failure to meet and confer with defendants. Indeed, he has not even responded to the instant motion. So as to not further delay and impede the progress of this case, plaintiff is ordered to promptly produce his initial disclosures, within 14 days. Plaintiff Is Ordered to Respond to the Discovery Requests Under Rule 33, a party may serve up to 25 written interrogatories, unless otherwise stipulated or ordered by the court. Fed. R. Civ. P. 33(a)(1). The responding party must serve its answers and any objections within 30 days of being served with the interrogatories, and any ground not stated in a timely objection is waived unless the court excuses the failure for good cause. Fed. R. Civ. P. 33(b)(2); (b)(4). Under Rule 34, a party may request documents “in the responding party's possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). The responding party must respond in writing and is obligated to produce all specified relevant and nonprivileged documents, tangible things, or electronically stored information in its “possession, custody, or control” on the date specified. Fed. R. Civ. P. 34(a). Alternatively, a party may state an objection to a request, including the reasons. Fed. R. Civ. P. 34(b)(2)(A)-(B). Because defendant served its interrogatories and requests for production on March 15, 2019, plaintiff's responses were due no later than April 19, 2019. Defendant SPS provided plaintiff with ample time to respond to its requests and communications, but plaintiff has not responded in any fashion. Plaintiff has simply ignored the discovery requests, appears to be ignoring any communications from defendants, and is shirking his discovery obligations. Plaintiff has offered no explanation or excuse; again, he did not even bother to respond to the instant motion. Furthermore, by failing to object to defendant's discovery requests or to respond at all, plaintiff has waived his objections to these requests. See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (“It is well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection.”). *3 To the extent plaintiff's failure to respond to the discovery requests and communications is related to his status as a pro se litigant, this is no excuse. Pro se parties, just like other parties, must comply with discovery rules and court orders. The court therefore orders plaintiff to respond promptly, and without objection, to the discovery requests. Plaintiff Is Ordered to Pay Sanctions Rule 37(a)(5) provides that the prevailing party on a discovery motion is entitled to an award of its reasonable expenses incurred in bringing or opposing the motion, including attorney's fees, except no payment should be ordered if: (1) the motion was filed before the moving party made a good faith effort to resolve the dispute; (2) the losing party's position was substantially justified; or (3) other circumstances make award of expenses unjust. Fed. R. Civ. P. 37(a)(5). Plaintiff here has utterly disregarded his discovery obligations and has not attempted to meet and confer with defendant. Plaintiff offers no justification for his failures, and there appears to be none. The court thus finds monetary sanctions are appropriate. Defendant SPS seeks $1,490.00 in attorney's fees and costs incurred and anticipated in bringing the instant motion. Laes Decl. ¶ 7. Defense counsel states he spent three hours researching and drafting the instant motion, and has an hourly billing rate of $298.00. Id. Defense counsel also states he anticipates spending an additional two hours drafting a reply brief, and preparing for and appearing at the hearing. Id. Because plaintiff never responded to the instant motion, defense counsel did not have to spend any additional time drafting a reply brief. Additionally, the court took the hearing off calendar and took the motion under submission on June 4, 2019. The court finds three hours spent by counsel on the instant motion is reasonable, particularly when the unfruitful time spent attempting to meet and confer is considered. Counsel's hourly rate is also reasonable. The court therefore finds SPS is entitled to $894.00 in attorney's fees (three hours at an hourly rate of $298.00). The Magistrate Judge Cannot Modify the Scheduling Order Defendants also request that the court modify the current scheduling order to permit adequate time to complete discovery. Mtn. at 7. Defendants argue plaintiff's failure to respond to the discovery requests has unnecessarily delayed the discovery process. Id. Under Local Rule 16-14, any application to modify a scheduling order entered under Fed. R. Civ. P. 16 must be made to the judicial officer who entered the order. L. R. 16-14. Here, because the District Judge entered the relevant scheduling order, any application to modify this schedule must be made to the District Judge. ORDER Accordingly, IT IS HEREBY ORDERED that defendant SPS's Motion to Compel plaintiff's initial disclosures and discovery responses, for monetary sanctions, and to modify the court's scheduling order (docket no. 11) is granted in large part. Plaintiff is ordered to respond in full to defendant's discovery requests without objection, including producing all responsive documents, and to produce his initial disclosures, within 14 days, that is, by June 24, 2019. Plaintiff also is ordered to pay sanctions of $894.00 to defendant SPS on or before July 8, 2019. If defendants wish to modify the scheduling order, they must seek such relief from the District Judge. *4 The court warns plaintiff that further failure to comply with his discovery obligations as ordered herein may result in further sanctions, which could include monetary sanctions, evidentiary sanctions, and/or terminating sanctions.