Misuraca v. Washington County Detention Center/Jail

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

AIRIAN JOVAN MISURACA, Case No. 3:21-cv-00846-IM

Plaintiff, OPINION AND ORDER

v.

WASHINGTON COUNTY DETENTION

CENTER/JAIL et al.,

Defendants.

IMMERGUT, District Judge.

Plaintiff Airian Jovan Misuraca (“Misuraca”), an individual in custody at Snake River

Correctional Institution, filed this civil rights action pursuant to 42 U.S.C. §1983 alleging various

claims stemming from his pretrial detention at the Washington County Jail (“WCJ”). Before the

Court are Defendant Trinity Service Group’s (“Trinity”) Motion to Compel Discovery and for

Sanctions (ECF No. 93 (“Def.’s Mot.”)) and Misuraca’s Motion to Compel and Motion for Order

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(ECF Nos. 90 (“Pl.’s Mot. I”), 102 (“Pl.’s Mot. II”)). For the following reasons, the Court grants

Trinity’s motion in part, and denies Misuraca’s motions.

BACKGROUND

Misuraca alleges that between September 2020 and May 2021, Trinity, a food-service

contractor in WCJ, frequently served him food containing carrots, to which he has a known

allergy.1 Misuraca further alleges that Trinity did not provide alternatives to the foods he could

not eat and deprived him of adequate calories to maintain his health and wellbeing. Misuraca’s

complaint also includes allegations against WCJ, Sheriff Pat Garrett, and Officer Jamie Loke

(the “Washington County Defendants”), concerning prolonged periods of segregation and

isolation during the Covid-19 pandemic.

The Court screened and ultimately dismissed Misuraca’s amended complaint for failure

to state a claim on December 9, 2021. (ECF No. 16.) Misuraca successfully appealed the Court’s

dismissal, and the Ninth Circuit remanded the case with instructions to serve the amended

complaint. (Id.) The Washington County Defendants waived service on October 21, 2022 (ECF

No. 26), and, after several service issues, the U.S. Marshal served Trinity on July 12, 2023 (ECF

No. 69). The Court thereafter ordered the parties to complete discovery by December 11, 2023

(ECF No. 65).

On November 3, 2023, Trinity served Misuraca with written discovery requests,

including thirteen interrogatories and eleven requests for production. (Decl. of Vicki M. Smith

(ECF No. 94) (“Smith Decl.”) ¶ 2, Ex. 1.) Trinity also sought and was granted leave to depose

1 Misuraca also claims that Diane Jimerez, the food service director at WCJ during the

relevant period, continuously served him foods to which he was allergic. However, Jimerez has

not appeared in this action because she has not been served.

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Misuraca, and the Court extended the discovery deadline to accommodate the deposition. (ECF

Nos. 82, 83.)

On December 29, 2023, Trinity received Misuraca’s responses to its written discovery

requests.2 (Smith Decl. ¶ 3.) Misuraca asserted a variety of objections and otherwise declined to

fully answer Trinity’s interrogatories because “information was denied by Defendants in this

case when the Plaintiff requested it in his ‘interrogatories,’ production of documents,’ and

motion to compel.’” 3 (Smith Decl., Ex. 2 at 2-7.) Misuraca also declined to produce any

documents responsive to Trinity’s requests for production, again asserting objections and

directing Trinity to “see complaints and exhibits on file with this court.” (Smith Decl. ¶ 3, Ex. 2

at 7-11.)

2 Trinity claims that Misuraca failed to timely respond to its discovery requests because

the deadline to do so expired December 7, 2023. (Def.’s Mot. at 2.) The record reflects, however,

that Misuraca signed his responses on December 4, 2023, and he presumably submitted them to

prison officials for mailing the same day. (Smith Decl., Ex. 2 at 11; Pl.’s Resp. to Def. Trinity

Mot. to Compel (ECF No. 106) at 3.) The Ninth Circuit has applied the mailbox rule to discovery

responses, holding that “an incarcerated pro se litigant completes ‘service’ under Fed. R. Civ. P.

5(b) upon submission to prison authorities for forwarding to the party to be served.” Faile v.

Upjohn Co., 988 F.2d 985, 988-89 (9th Cir. 1993). In the absence of any evidence that Misuraca

did not submit his responses to prison officials until after December 7, the Court accepts

Misuraca’s allegation that his responses were timely. See id. (explaining that “[w]hen a pro se

prisoner alleges that he timely complied with a procedural deadline by submitting a document to

prison authorities, the district court must either accept that allegation as correct or make a factual

finding to the contrary upon a sufficient evidentiary showing by the opposing party”).

3 On July 28, 2023, shortly after Trinity was served in this case, Misuraca filed a motion

to compel the Washington County Defendants to produce all documents responsive to his

requests for production, explaining that he had submitted his requests on June 7, 2023, “but have

not yet received the answers.” (ECF No. 66.) The Court denied the motion (and another

duplicative motion (ECF No. 74)) as moot because the Washington County Defendants produced

specific objections and documents in response to Misuraca’s requests. (ECF Nos. 77, 79.) The

Court notes that Misuraca’s previous motions to compel were directed to the Washington County

Defendants, not Trinity, and therefore are not relevant to the instant dispute.

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On January 12, 2024, Trinity sent Misuraca a letter detailing the inadequacy of his

discovery responses “in an effort to confer and resolve the discovery dispute[.]” (Smith Decl. ¶ 4,

Ex. 3.) The letter noted that Misuraca’s objections to Trinity’s interrogatories were “largely

incomprehensible,” and that he had repeatedly referenced “exhibits that are on file with the

court” without “specifically identify[ing] which ‘exhibits’ are being referenced.” (Id.) The letter

further noted that Misuraca’s responses to Trinity’s requests for production also relied on

objections “that have no relevance[,]” and that he had repeatedly insisted that he was “still

awaiting the rest of this information” without “identify[ing] any pending requests for said

information or from whom[.]” (Id.) Trinity thus requested that Misuraca supplement his

responses by January 24, 2024, warning that a motion to compel would be forthcoming if he

failed to do so. (Id.)

Misuraca did not respond to Trinity’s letter. (Smith Decl. ¶ 5.) Instead, he filed his own

motion to compel on January 30, 2024, requesting a court order compelling the Washington

County Defendants to respond to fifteen requests for production. (Pl.’s Mot I at 1, 3.) The

Washington County Defendants oppose the motion. (ECF No. 96.)

On February 1, 2024, Defendants deposed Misuraca.4 (Smith Decl. ¶ 7.) According to

Trinity, Misuraca’s conduct during the deposition was “extremely obstructive, as he repeatedly

refused to follow deposition protocol, interrupted the court reporter and counsel, and refused to

answer the questions.” (Def.’s Mot. at 3; see also Smith Decl., Ex. 4.) In addition, Misuraca

acknowledged that he possessed, but had not produced, relevant notes and witness statements

that he had taken while still in custody at WCJ. (Smith Decl., Ex. 4 at 11.) When asked if he

4 Trinity initially attempted to depose Misuraca on December 12, 2023, but had to

suspend the deposition due to audio issues. (Smith Decl. ¶ 6.)

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would supplement his discovery responses to include the withheld information, Misuraca

indicated that he would not, asserting that he cannot disclose “people’s personal information[,]”

that Trinity “won’t give [him] the documents[,]” and that he had “provided all the legal

information . . . [that he was] eligible to provide under the law.” (Id. at 11-15.)

On February 9, 2024, Trinity filed a motion to compel Misuraca to respond to Trinity’s

Interrogatories 1-3, 9, and 13, and Requests for Production of documents 1-11. (Def.’s Mot. at

2.) In the alternative, Trinity argues that Misuraca’s refusal to provide information or documents

concerning his alleged injuries or damages warrant terminating sanctions. (Id. at 6.) Misuraca

opposes the motion. (ECF No. 106.)

On February 13, 2024, Misuraca moved for a court order requiring Defendants “to

properly file timely notices” so that he has “has time to respond or prepare for said ‘notice.’”

(Pl.’s Mot. II at 1.) Neither Trinity nor the Washington County Defendants responded to the

motion.

STANDARDS

The purpose of discovery is to “remove surprise from trial preparation so the parties can

obtain evidence necessary to evaluate and resolve their dispute.” U.S. ex rel. O’Connell v.

Chapman University, 245 F.R.D. 646, 648 (C.D. Cal. 2007) (simplified). Federal Rule of Civil

Procedure (“Rule”) 26(b)(1) sets forth the general scope of permissible discovery, providing, in

relevant part:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to

any party’s claim or defense and proportional to the needs of the case, considering

the importance of the issues at stake in the action, the amount in controversy, the

parties’ relative access to relevant information, the parties’ resources, the

importance of the discovery in resolving the issues, and whether the burden or

expense of the proposed discovery outweighs its likely benefit. Information within

this scope discovery need not be admissible in evidence to be discoverable.

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FED. R. CIV. P. 26(b)(1). The Court must limit discovery, however, if it determines that the

discovery sought is outside the scope of Rule 26(b)(1), or if it is “unreasonably cumulative or

duplicative, or can be obtained from some other source that is more convenient, less burdensome,

or less expensive.” FED. R. CIV. P. 26(b)(2)(C)(i).

A party seeking discovery may move the Court for an order compelling answers to

interrogatories or the production of requested documents. FED. R. CIV. P. 37(a)(3)(B). “In general,

the party seeking to compel discovery must inform the court which discovery requests are the

subject of the motion to compel, and, for each disputed request, inform the court why the

information sought is relevant and why the objections are not meritorious.” Sarnowski v. Peters,

Case No. 2:16-cv-00176-SU, 2017 WL 4467542, at *2 (D. Or. Oct. 6, 2017) (citing Weaving v.

City of Hillsboro, No. CV-10-1432-HZ, 2011 WL 1938128, at *1 (D. Or. May 20, 2011)).

Information is “relevant” if it is “reasonably calculated to lead to the discovery of admissible

evidence,” and district courts have broad discretion in determining relevancy. Surfvivor Media,

Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005) (quoting Brown Bag Software v.

Symantec Corp., 960 F.2d 1465, 1470 (9th Cir. 1992)).

The party opposing discovery “has the burden to show that discovery should not be

allowed, and has the burden of clarifying, explaining, and supporting its objections.” DIRECTV,

Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) (first citing Blankenship v. Hearst Corp., 519

F.2d 418, 429 (9th Cir. 1975); then citing Nestle Foods Corp. v. Aetna Cas. & Sur. Co., 135 F.R.D.

101, 104 (D.N.J. 1990)); see also Yufa v. Hach Ultra Analytics, No. 1:09-cv-3022-PA, 2014 WL

11395243, at *1 (D. Or. Mar. 4, 2014) (explaining that “[i]f a party elects to oppose a discovery

request, the opposing party bears the burden of establishing that the discovery is overly broad,

unduly burdensome, or not relevant[,]” and that “boilerplate, generalized objections are inadequate

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and tantamount to not making any objection at all”) (simplified). If a party objects to a discovery

request, the party seeking discovery on a motion to compel must demonstrate why the objection is

not justified. Weaving, 2011 WL 1938128, at *1.

DISCUSSION

I. Trinity’s Motion

A. Trinity’s Interrogatories

Trinity seeks to compel Misuraca’s responses to Interrogatories 1-3, 9, and 13, which

concern basic information about the nature of Misuraca’s case, potential expert witnesses, and

the identities of the individual WCJ or Trinity staff members who Misuraca allegedly informed

about his food allergies. (Def.’s Mot. at 5-6.)

Interrogatories “may relate to any matter that may be inquired into under Rule 26(b).”

FED. R. CIV. P. 33(a)(2). Parties are obligated to respond to interrogatories to the fullest extent

possible under oath, FED. R. CIV. P. 33(b)(3), and must state the grounds for any objections with

specificity, FED. R. CIV. P. 33(b)(4). “A responding party is generally not required to perform

extensive research to acquire requested information[,]” but must make reasonable efforts to

respond. L.H. v. Schwarzenegger, Civ. No. S-06-2042 LKK GGH, 2007 WL 2781132, at *2

(E.D. Cal. Sept. 21, 2007) (simplified). The responding party must supplement his responses if

he “learns that in some material respect the disclosure or response is incomplete or incorrect, and

if the additional or corrective information has not otherwise been made known to the other

parties during the discovery process or in writing[.]” FED. R. CIV. P. 26(e)(1)(A).

1. Interrogatories 1 and 9

Interrogatory 1 asks Misuraca to “[i]dentify each and every person” whom he believes

has relevant information or knowledge about his claims, to provide “a brief summary of the

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information or knowledge that he or she possesses,” and to indicate whether Misuraca intends to

call him or her as a witness at trial. (Smith Decl., Ex. 1 at 1-2.) Misuraca returned the following

response:

See exhibits on file with this court. Objection; overbroad and unduly burdensome.

To the extent the interrogatory seeks a legal conclusion, it seeks information

proted [sic] by privilege including, but not limited to the work product. This

information was denied by Defendants in this case when the Plaintiff requested it

in his “interrogatories,” “production of documents,” and “motion to compel.”

(Smith Decl., Ex. 2 at 2.)

Interrogatory 9 asks Misuraca to identify and summarize the anticipated testimony of

individuals he intends to call as expert witnesses at trial, the material he or she relied on upon in

reaching an opinion, and the individual’s fee schedule. (Smith Decl., Ex. 1 at 5-6.) Misuraca

returned the following response:

See exhibits on file with this court. Plaintiff objects; this request is overbroad and

unduly burdensome, includes materials that may be protected by privilege,

including, but not limited to the work product doctrine. These documents are

equally available to Defendants through public records.

(Smith Decl., Ex. 2 at 6.)

Misuraca’s objections lack merit. Interrogatories 1 and 9 are specific and narrow, and

identifying individuals who have information about Misuraca’s claims or who may provide

expert testimony is not so burdensome as to negate Misuraca’s duty to answer. See L.H., 2007

WL 2781132, at *2 (explaining that “if the responding party would necessarily have to gather the

requested information to prepare [his] own case, objections that it is too difficult to obtain the

information for the requesting party are not honored” (simplified)). Moreover, the work-product

doctrine does not apply, see U.S. v. Richey, 632 F.3d 559, 567-68 (9th Cir. 2011) (explaining the

work-product doctrine), and Misuraca does not specify, nor can the Court surmise, how such

information would be otherwise privileged.

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In addition, Misuraca cannot avoid his obligation to fully answer Trinity’s interrogatories

under oath by generically referencing his numerous filings with this Court. See FED. R. CIV. P.

33(b)(3) (instructing that an interrogatory “must, to the extent it is not objected to, be answered

separately and fully in writing under oath”). Moreover, Misuraca cannot justify his refusal to

respond to Trinity’s interrogatories as the Federal Rules require by pointing to his previous

difficulty obtaining discovery to his satisfaction. See Livenson v. Rockwell Collins, Inc., Case

No. 2:20-cv-9578-SB (SKx), 2021 WL 4497501, at *1 n.1 (C.D. Cal. May 29, 2021) (noting that

“a party may not withhold discovery solely because it has not obtained to its satisfaction other

discovery”). Finally, it is unclear how Trinity could glean information about the identities of

Misuraca’s expert witnesses or their anticipated testimony from public records.

For these reasons, the Court grants Trinity’s motion to compel and orders Misuraca to

fully respond to Interrogatories 1 and 9 within thirty (30) days of the date of this order.

2. Interrogatories 2, 3, and 13

Interrogatory 2 asks Misuraca to “[i]dentify any and all statements that [he has] taken,

given, received, or of which [he has] possession, whether written, oral, or recorded, concerning

the events which underlie the allegations” in the complaint. (Smith Decl., Ex. 1 at 3.)

Interrogatory 3 asks Misuraca to identify individuals he intends to call as witnesses at trial and to

summarize their anticipated testimony. (Id.) Interrogatory 13 asks Misuraca to “[i]dentify all

‘staff of the defendant’ [he] claim[s] to have ‘alerted’ to the issues in [the] complaint, and the

manner in which [he] claim[s] to have ‘alerted’ them.” (Id. at 7.)

In response to each of those interrogatories, Misuraca again referred Trinity to “exhibits

on file with the court” and indicated his refusal to answer based on his previous difficulty

obtaining satisfactory discovery. (Smith Decl., Ex. 2 at 2-3, 7.) As explained above, Misuraca

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must make reasonable efforts to fully answer Trinity’s questions under oath, and he may not

avoid his obligation to do so by making vague references to his filings in this case or by

withholding information to compel further production by Defendants. See FED. R. CIV. P.

33(b)(3); Nat’l Acad. of Recording Arts & Scis, Inc. v. On Point Events, LP, 256 F.R.D. 678, 680

(C.D. Cal. 2009) (explaining that “discovery is not conducted on a ‘tit-for-tat’ basis”).

Accordingly, the Court grants Trinity’s motion to compel and orders Misuraca to fully

respond to Interrogatories 2, 3, and 13 within thirty (30) days of the date of this order.

B. Requests for Production

Trinity moves for a court order compelling Misuraca to fully respond to its Requests for

Production 1-11. (Smith Decl., Ex. 1 at 7-11.) Although Misuraca served Trinity with responses

to its requests for production, he has thus far refused to produce any responsive documents.

(Smith Decl. ¶ 7.)

A party may serve on any other party a request within the scope of Rule 26(b) “to

produce and permit the requesting party or its representative to inspect, copy, test, or sample”

any designated documents or tangible things “in the responding party’s possession, custody, or

control[.]” FED. R. CIV. P. 34(a)(1). The responding party must specify in its response that it will

produce responsive materials or “state with specificity the grounds for objecting to the request,

including the reasons.” FED. R. CIV. P. 34(a)(2)(B). “An objection must state whether any

responsive materials are being withheld on the basis of that objection.” FED. R. CIV. P.

34(a)(2)(C). “In responding to discovery requests, a reasonable inquiry must be made, and if no

responsive or tangible things exist, . . . the responding party should so state with sufficient

specificity to allow the Court to determine whether the party made a reasonable inquiry and

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exercised due diligence[.]” Simmons v. Adams, No. 1:10-cv-01259-LJO-SKO PC, 2013 WL

2995274, at *4 (E.D. Cal. June 14, 2013) (simplified).

1. Requests for Production 1, 4-6, and 8-10

Requests for Production 1, 4-6, and 8-10 seek documents establishing the underlying fact

of this case, including documents that Misuraca intends to rely on at trial to support his claims

that he has food allergies, that he was served food to which he was allergic, and that he alerted

jail staff to the issues set forth in the complaint. (Smith Decl., Ex. 1 at 7-10.) In response,

Misuraca again directed Trinity to “see complaints and exhibits on file with this court” and

simply stated that he “was denied his ‘interrogatories,’ ‘production of documents,’ and ‘motion

to compel’ by Defendants to gain further information.” (Smith Decl., Ex. 2 at 7-10.)

As explained above, such responses are insufficient, see Burlington N. & Santa Fe Ry.

Co. v. U.S. Dist. Ct. for Dist. of Mont., 408 F.3d 1142, 1148-49 (9th Cir. 2005) (explaining that

“[t]he purpose of discovery is to provide a mechanism for making relevant information available

to the litigants . . . [t]hus the spirit of the rules is violated when advocates attempt to use

discovery tools as tactical weapons rather than to expose the facts and illuminate the issues”),

and otherwise suggest that Misuraca failed to conduct a “reasonable inquiry” to identify and

produce responsive materials in his possession.

Accordingly, the Court grants Trinity’s motion to compel and orders Misuraca to serve

appropriate responses to Requests for Production 1, 4-6, and 8-10, and to produce any responsive

materials in his possession, custody, or control. This means that Misuraca must produce any

materials described in Trinity’s requests that are in his actual possession, custody, or control or

that he has a “legal right to obtain on demand,” Allen v. Woodford, No. CV-F-05-1104 OWW

LJO, 2007 WL 309945, *2 (E.D. Cal. Jan. 30, 2007) (citation omitted), and he must explicitly

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state if no such documents exist. In addition, if Trinity seeks documents that are not in

Misuraca’s possession, he “must so state with sufficient specificity to allow the Court (1) to

conclude that the responses were made after a case-specific evaluation and (2) to evaluate the

merit of that response.” Ochotorena v. Adams, No. 1:05-cv-01525-LJO-DLB (PC), 2010 WL

1035774, at *3-4 (E.D. Cal. Mar. 19, 2010). The Court warns Misuraca that general references to

previous filings or blanket refusals without justification will not suffice and may warrant

sanctions.

2. Requests for Production 2 and 3

Request for production 2 seeks any documents that Misuraca may use at trial that he has

“obtained from any party or nonparty to this litigation in response to an informal request, public

records request, FOIA request, subpoena deuces tecum, medical or mental health records request,

or any open governance law[.]” (Smith Decl., Ex. 1 at 8.), Misuraca responded, as follows:

Objection; this request is overbroad and unduly burdensome, includes materials

that may be protect by privilege—including, but not limited to the work doctrine;

ORCP 55H protective orders.

(Smith Decl., Ex. 2 at 8.)

Request for Production 3 seeks “all expert witness documentation for every person

[Misuraca] intend[s] to call as an expert witness at trial,” including each expert’s reports, resume,

lists of previous publications and cases in which he or she has testified as an expert witness, and

the documentation Misuraca has provided each expert. (Smith Decl., Ex. 1 at 8.) Misuraca

returned the following response:

See exhibits on file with this Court. Objection; this request is overbroad and

unduly burdensome, includes materials that may be protected by privilege—

including but not limited to the work doctrine.

(Smith Decl., Ex. 2 at 8.)

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Misuraca’s objections to Requests for Production 2 and 3 lack adequate specificity and

otherwise lack merit. Neither request is overbroad or unduly burdensome, and boilerplate

objections, without more, are insufficient to assert a privilege. See FED. R. CIV. P. 26(b)(5)

(instructing that when a party withholds information by claiming that it is privileged or subject to

protection as trial-preparation material, he must expressly make the claims and “describe the

nature of the documents, communications, or tangible things not produced or disclosed—and do

so in a manner that, without revealing information itself privileged or protected, will enable other

parties to assess the claim”); see also Burlington N., 408 F.3d at 1149 (explaining that

“boilerplate objections or blanket refusal inserted into a response to a Rule 34 request for

production of documents are insufficient to assert a privilege”). In addition, Misuraca’s objection

pursuant to Oregon Rule of Civil Procedure 55H5 lacks merit because the Federal Rules of Civil

Procedure govern this proceeding, not the Oregon rules.

For these reasons, the Court grants Trinity’s motion to compel and orders Misuraca to

fully respond to Trinity’s Requests for Production 2 and 3 within thirty (30) days of the date of

this order.

3. Requests for Production 7 and 11

Request for Production 7 seeks “any and all documents or things that [Misuraca] ha[s]

not previously disclosed and that [he] may use at the time or trial or hearing for purposes of

impeachment.” (Smith Decl., Ex. 1 at 10.) Request for Production 11 seeks “all documents

identified in [Misuraca’s] response to Trinity’s interrogatories.” (Id. at 11.) In response,

5 To the extent Misuraca seeks to avoid disclosure due to privacy concerns, the Court

notes that a protective order is in place to ensure the confidentiality of the information exchanged

in this lawsuit (ECF No. 91).

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Misuraca objects that Requests for Production 7 and 11 are overbroad, unduly burdensome, and

“impermissibly vague.” (Smith Decl., Ex. 2 at 10-11.)

Neither request is overbroad or unduly burdensome. However, the Court is concerned,

given Misuraca’s pro se status, that Trinity’s request for materials that Misuraca may use “for the

purposes of impeachment” is less than ideally clear. The Court thus grants Trinity’s motion to

compel with respect to Request for Production 11 but denies the motion as to Request for

Production 7. Trinity may re-serve Request for Production 7 within thirty days, but it must be

redrafted in laymen’s terms for clarity.

C. Sanctions

Trinity also moves for dismissal sanctions based on Misuraca’s repeated failure to

respond to discovery requests and the resulting “delay, prejudice to Trinity, congestion in the

court’s docket, and the likely result that Trinity may never have access to the full facts in this

case[.]” (Def.’s Mot. at 6.) However, the Court finds that such motion is premature and that the

alternative sought—an order compelling Misuraca to fully respond to Trinity’s interrogatories

and requests for production—is more appropriate.

Although Misuraca has repeatedly failed to provide adequate responses to Trinity’s

discovery requests,6 it appears that such failures stem from Misuraca’s lack of understanding of

the discovery process, its purpose, and his obligations to participate and to cooperate with

Defendants in good faith to complete discovery. The Court has attempted to clarify and

6 The Court is sensitive to the time and resources Trinity has expended in seeking

discovery from Misuraca and its reasonable concern that the full facts of this case may prove

elusive. Although the Court is not prepared to grant terminating sanctions at this time, the Court

notes that it will entertain a motion for leave to again depose Misuraca if Trinity deems it

necessary.

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emphasize those obligations here. If Misuraca nevertheless refuses to comply with this order and

continues to withhold discoverable information or materials without justification, raise frivolous

objections, or otherwise attempt to avoid fully cooperating in discovery, Trinity may then move

for dismissal. See Conn. Gen. Life v. Providence, 482 F.3d 1091, 1096 (9th Cir. 2007)

(explaining that “[o]nly willfulness, bad faith, and fault justify terminating sanctions”); see also

Comput. Task Grp., Inc. v. Brotby, 364 F.3d 1112, 1115-16 (9th Cir. 2004) (explaining that

district courts must first consider lesser sanctions, such as ordering the offending party to comply

with the moving party’s discovery requests, before imposing the “drastic remedy” of dismissal).

The Court thus warns Misuraca that he must comply with Trinity’s discovery requests in good

faith as set forth in this order or he will be subject to sanctions up to and including dismissal of

his claims against Trinity.

II. Misuraca’s Motions

A. Misuraca’s Motion to Compel

Misuraca seeks to compel the Washington County Defendants to respond to fifteen

requests for production attached to the motion.7 (Pl.’s Mot. I at 1-2.) As the Washington County

Defendants point out, however, the requests attached to Misuraca’s motion are directed to

“Defendant Trinity Service Group.” (Id. at 4.) It is thus unclear whether Misuraca intended to

direct his motion to compel at Trinity or if he seeks to compel the Washington County

Defendants’ responses to the discovery requests directly solely to Trinity.

7 Misuraca’s motion specifies that he seeks to compel the Washington County

Defendants’ responses to only requests for production 1-15, but he also attaches nineteen

interrogatories to the motion. It is unclear if Misuraca also seeks to compel responses to the

interrogatories.

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To the extent Misuraca seeks to compel the Washington County Defendants’ response to

the discovery requests attached to the motion, the Washington County Defendants are not

obligated to answer discovery requests directed only to Trinity. In addition, the Washington

County Defendants have responded to Misuraca’s discovery requests and attest that they are

continuing to produce responsive documents in accordance with their ongoing discovery

obligations. (See Washington Cnty. Defs.’ Resp. to Pl.’s Mot. (ECF No. 96) at 2.) Misuraca

presents no evidence to the contrary.

To the extent Misuraca intended to compel Trinity’s response to his discovery requests, it

appears that Misuraca failed to properly serve Trinity with those requests. Misuraca attests that

he served the attached discovery requests on June 7, 2023, over a month before Trinity was

properly served by the USMS, and there is no evidence that Misuraca again attempted to serve

his discovery requests after Trinity answered the amended complaint in August 2023 (ECF No.

70). For these reasons, the Court denies Misuraca’s first motion to compel (ECF No. 90).

B. Misuraca’s Motion for Order

Misuraca seeks a court order requiring all defendants “to properly file timely notices

upon the Plaintiff.” (Pl.’s Mot. II at 1.) Although the motion is unclear as to the exact nature and

scope of Misuraca’s request, it appears from his supporting declaration that he did not receive the

Defendants’ notice of deposition until the day after his deposition occurred due to mail service

delays. (Decl. of Airian Misuraca (ECF No. 103) at 2.) Because Defendants have not requested

leave to further depose Misuraca, the Court denies as moot Misuraca’s second motion to compel.

The Court nevertheless reminds all parties that they are expected to abide by all notice

requirements as set forth in the Local Rules and the Federal Rules of Civil Procedure for the

remainder of this case.

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CONCLUSION

Based on the forgoing, the Court GRANTS Trinity’s Motion to Compel and for Sanctions

(ECF No. 93), in part, and ORDERS Misuraca to fully respond to Trinity’s Requests for

Production 1-6 and 8-11 and Interrogatories 1, 2, 3, 9, and 13, within thirty (30) days of the date

of this order. If Trinity intends to amend and re-serve Interrogatory 7, it must do so within thirty

(30) days of the date of this order.

The Court DENIES Trinity’s request for terminating sanctions but warns Misuraca that if

he fails to comply with this order or otherwise participate in discovery, he may be subject to

sanctions up to and including the dismissal of his claims against Trinity.

The Court DENIES Misuraca’s Motions to Compel (ECF Nos. 90, 102.)

IT IS SO ORDERED.

DATED this 28th day of June, 2024.

/s/ Karin J. Immergut

Karin J. Immergut

United States District Judge

PAGE 17 – OPINION AND ORDER