Judge: Stephen I. Goorvitch, Case: 19STCV19051, Date: 2022-08-23 Tentative Ruling

Case Number: 19STCV19051    Hearing Date: August 23, 2022    Dept: 39

Musa Porome v. Wavestream Corporation, et al.

Case No. 19STCV19051

Plaintiff’s Motion to Compel Further Discovery Responses

Plaintiff’s Motion to Consolidate

            A.        Motion to Compel Further Responses

            Plaintiff Musa Porome (“Plaintiff”) filed this action against Wavestream Corporation (“Wavestream”) and Express Services, Inc. (“ESI”), as well as Anne Woods (“Woods”), on May 31, 2019.  Plaintiff allegedly worked for ESI, a staffing agency, and was placed as a temporary employee at Wavestream, but he was not hired permanently by Wavestream and eventually was terminated by Express Services.  Now, Plaintiff moves to compel further responses to certain Requests for Production (“RPD”) from ESI.  The procedural history of this motion is as follows:

            On May 1, 2022, Plaintiff propounded Requests for Production of Documents (Set Three) on ESI “seek[ing] discovery to further substantiate MBS’ and/or Woods’ role as [ESI’s] agent, authorized to perform the alleged unlawful retaliatory and discriminatory conduct on [ESI’s] behalf, for sake of proving both [ESI’s] liability and its exposure to a punitive damages award.”  (Kahn Decl. ¶ 11, Exh. F.)  On June 2, 2022, ESI served responses, and Plaintiff found the responses to Request Numbers 94-108 to be deficient because they only comprised of objections and refusals to respond. (Kahn Decl. ¶ 12, Exh. G.)  On June 16, 2022, Plaintiff initiated the meet and confer process by email and requested a response to the meet and confer by June 24, 2022, with supplemental responses served by July 8, 2022.  (Kahn Decl. ¶ 13, Exh. H.) 

            At this point, the record becomes unclear.  Plaintiff’s counsel did not email again until July 13, 2022.  (Cheffer Decl., Exh. C.)  After he finally emailed, ESI’s counsel responded: “As a reminder, Defendants [sic] deadline to respond to the supplemental discovery has been extended to July 15, 2022.  We believe that when those documents are served it will satisfy your issues outlined in the below meet and confer correspondence.”  (Ibid.)  In his response, Plaintiff’s counsel did not dispute that the deadline for supplemental responses was July 15, 2022.  (Ibid.)  Accordingly, this record suggests that there was some communication between June 16, 2022, and July 13, 2022, during which Plaintiff’s counsel granted ESI an extension to July 15, 2022.

            Yet, this motion was filed on July 14, 2022, in advance of ESI’s deadline to provide supplemental responses.  The motion also was filed in advance of the jurisdictional deadline, which was July 20, 2022.  Specifically, ESI served its responses on June 2, 2022.  (Kahn Decl., Exh. G.)  A motion to compel further responses is due 45 days later, which would be Sunday, July 17, 2022.  Because this date falls on a Sunday, the deadline is Monday, July 18, 2022.  Because the responses were served electronically, there are two days added to the deadline, which means the motion was due on July 20, 2022.  This does not evidence a good faith effort to resolve the issue. 

            Nor does ESI’s conduct evidence good faith in attempting to resolve this dispute.  Although ESI’s deadline to provide supplemental responses was July 15, 2022, ESI did not provide supplemental responses until July 26, 2022, after the jurisdictional deadline to file the instant motion.

            Based upon the foregoing, Plaintiff’s motion to compel further responses is denied as moot, as there is no dispute that ESI has provided supplemental responses.  Both parties seek sanctions, but the Court denies both requests.  Both sides are responsible for this discovery dispute, and they should have been able to resolve it without assistance of the Court.  Therefore, an award of sanctions to either side would be unjust.

            B.        Motion to Consolidate

            Plaintiff moves to consolidate the instant case with Case Number 22STCV12008.  Previously, Plaintiff’s counsel sought to amend the operative complaint to add Millennium Business Solutions as a defendant, arguing that “he only learned of the distinction between Express Services and Millennium Business Solutions at a deposition of Express Services’ vice president on December 14, 2021.”  (See Court’s Minute Order, dated January 31, 2022.)  The Court denied the motion, finding that Plaintiff’s counsel was on notice of the issue no later than January 19, 2021, and likely before that date.  (Ibid.)  The Court found no misrepresentations or bad faith by Defendants, and that an amendment would prejudice Defendants, given how long the case had been pending.  (Ibid.)  Plaintiff then filed a separate case against Millennium Businesses, Inc. and seeks to circumvent the Court’s ruling of January 31, 2022, by consolidating the two cases.

            The Court continues the hearing on Plaintiff’s motion to consolidate to October 17, 2022, at 9:00 a.m.

            C.        Notice

            Defendants’ counsel shall provide notice and file proof of such with the Court.