United States District Court, W.D. Washington, Tacoma
ORDER DENYING MOTION TO COMPEL AND DENYING MOTION TO
Richard Creatura United States Magistrate Judge
District Court has referred this 42 U.S.C. § 1983 civil
rights action to United States Magistrate Judge J. Richard
Creatura. The Court's authority for the referral is 28
U.S.C. § 636(b)(1)(A) and (B), and local Magistrate
Judge Rules MJR 3 and MJR 4.
John Thomas Entler has filed a motion to compel discovery,
attaching a certification stating that he has met and
conferred with defendants. However, plaintiff only met and
conferred with defendants about two discovery materials and
has not yet met or conferred about the remaining eight
discovery materials he identified in his motion. Therefore,
the motion is denied because it is premature.
originally filed his complaint in May of 2017. Dkt. 1. He
alleges that defendants were deliberately indifferent to
plaintiff's safety when they installed Lexis Nexis on the
prison computers, thereby allowing other prisoners to learn
of plaintiff's underlying conviction and allegedly
leading to other prisoners harassing and threatening
plaintiff. Dkt. 8. He alleges that defendants have further
refused to remove Lexis Nexis from the computers or censor
his name in the system. Id. After the Court ordered
service of the complaint and entered a pretrial scheduling
order (Dkts. 9, 14), plaintiff filed a motion to compel (Dkt.
motion, plaintiff argues that defendants have failed to
provide the mandatory initial disclosures required by the
Court's mandatory pretrial scheduling order. Id.
He requests that the Court compel defendants to provide a
group of ten allegedly discoverable materials. Id.
at 3-5. He has also included a certificate stating he met and
conferred with defendants to resolve the dispute without
success. Id. at 11-12.
responded, stating that plaintiff had not, in fact, met or
conferred with defendants. Dkt. 30. They argue that, though
plaintiff discussed two discovery issues with defendants'
counsel, the discussion did not include the discovery items
identified in the motion and therefore the motion is
premature. Id. Plaintiff filed a reply, alleging
that he “illustrated to [defendants' counsel]
documents/records [defendants] could have produced, but
didn't, ” and further states that defendants were
on notice they were not in compliance with the pretrial
scheduling order. Dkt. 32 at 2. Defendants filed a surreply,
requesting plaintiff's statement be stricken because it
is, “at a minimum, quite misleading.” Dkt. 34 at
1. Plaintiff then filed a response to that surreply. Dkt. 36.
Because it was filed in violation of local rules
(see LCR 7), the Court does not consider
plaintiff's response to the surreply.
Motion to Strike
have filed a surreply moving to strike from plaintiff's
reply the “assertion that he ‘illustrated to
[opposing counsel] documents/records [which] could have
[been] produced, but [weren't]'.” Dkt. 34 at 1
(citing Dkt. 32 at 2, ¶ 2.3). The Court may strike from
a pleading any “redundant, immaterial, impertinent, or
scandalous matter.” Fed. R. Civ. Proc. 12(f). When a
party moves to strike material contained in a reply brief, a
surreply is the appropriate vehicle. LCR 7(g). Here,
defendants have not specified whether they think
plaintiff's statement is redundant, immaterial,
impertinent, or scandalous, but have requested the Court
strike plaintiff's statement because the statement is,
“at a minimum, quite misleading.” Dkt. 34 at 1.
The Court declines to strike the material, although it is
Court agrees with defendants that a general statement that
“[defendants] continue to violate the Courts [sic]
mandatory discovery order” (Dkt. 35-1 at 2) is not
enough to place defendants on notice of specific documents
plaintiff believes defendants have failed to produce.
Motion to Compel
party may apply to the court for an order compelling
discovery, the movant must first meet and confer with the
party failing to make disclosure or discovery in an effort to
resolve the dispute without court action. Fed.R.Civ.P. 37
(a)(1); LCR 37(a)(1). In addition, when filing a motion to
compel, the movant must include a certification, in the
motion or in a declaration or affidavit, that the movant has
in good faith conferred or attempted to confer with the party
allegedly failing to make disclosure or discovery in an
effort to resolve the dispute without court action. LCR
37(a)(1). The certification must list the date, manner, and
participants to the conference. Id. If the movant
fails to include such a certification, the Court may deny the
motion without addressing the merits of the dispute. See
has filed a certification stating that he and defendants'
counsel spoke about their discovery dispute on February 5,
2018. Dkt. 21 at 11-12. However, both parties have also
provided evidence that, though the parties met and conferred
on February 5, 2018, they only met and conferred about two
specific articles of discovery -- not the ten discovery
requests contained in plaintiff's motion to compel.
See Dkts. 21 at 13; 36 at 7; Dkts. 29, 35. Though
plaintiff need not meet and confer with defendants'
counsel in person, he must meet and confer about the specific
discovery requests he believes defendants are not complying
with before he files the motion to compel. See,
e.g., Moore v. Magat, No. 140cv003608-HSG
(PR), 2015 WL 5611438 at *1 (N.D. Cal. 2015); Madsen v.
Risenhoover, No. C 09-5457 SBA (PR), 2012 WL 2873836 at
*3 (N.D. Cal. 2012) (both noting that defendants must be
notified of the specific discovery they are allegedly
withholding before plaintiff may file a motion to compel).
Moreover, defendants claim that they have now provided the
discovery requested in the February 5, 2018 conversation.
Dkts. 21 at 3-4; 35 at 2 (providing a contract between the
Department of Corrections and Lexis Nexis, and a declaration