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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

James Sanford

Plaintiff, No. CIV S-04-1114 DFL CMK 

vs.

Roseville Cycle, Inc, et. al., 

Defendants.

 / ORDER

On October 6, 2005, in response to plaintiff’s motion to compel discovery, this

court issued an order directing defendant Cynthia Johnston to, within fifteen days from the date

the order was served, show cause why this court should not impose sanctions for her failure to

respond to plaintiff’s discovery requests. To date plaintiff has not complied with the show cause

order. 

In his motion to compel, plaintiff states that defendant Johnston failed to respond

to any of his discovery requests. Plaintiff’s motion seeks an order directing plaintiff to produce

documents and responses demanded in his Request for Production of Documents, Interrogatories

and Request for Admission. Plaintiff also seeks to sanction defendant Johnston by prohibiting

her testifying or introducing evidence at trial and requests reasonable expenses pursuant to Fed.

R. Civ. P. 37(a)(4). 

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2

The court declines to impose the harsh sanction of preventing defendant Johnston

from testifying or introducing evidence at trial. As the discovery cut-off date in this case is July

12, 2006, court cannot conclude that prohibiting defendant Johnston from introducing any

evidence or testifying at trial is an appropriate sanction. See, e.g., C. Wright, A. Miller & R.

Marcus, Federal Practice and Procedure § 2283 at 604-606 (1994 & Supp. 2004) (noting the

constitutional limitations on sanctions.); see also, Dorsey v. Academy Moving & Storage, Inc.,

423 F.2d 858, 860-61 (5th Cir. 1970) (stating that rule 37 is designed to empower court to

compel evidence, but the court should not go beyond the necessities of the situation). Plaintiff

has plenty of time in the nearly nine months left in the discovery process to obtain discovery

from defendant Johnston. 

However, defendant Johnston has failed to respond to plaintiff’s discovery

requests and has failed to respond to the court’s October 6, 2005 order to show cause. The court

orders defendant Johnston to produce documents and responses demanded in plaintiff’s Request

for Production of Documents, Interrogatories and Request for Admissions. The court also

awards plaintiff reasonable costs for the preparation of the motion to compel pursuant to Fed. R.

Civ. P. 37(a)(4). As defendant Johnston is represented by counsel, the court directs that

defendant’s counsel shall pay the costs awarded out of her personal funds. 

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3

IT IS ORDERED that:

1. Within twenty days from the date this order is served defendant Johnston is

ordered to produce documents and responses demanded in plaintiff’s Request for Production of

Documents, Interrogatories and Request for Admissions;

2. Plaintiff is directed to inform the court if defendant Johnston fails to produce

said documents and responses; and 

3. Reasonable expenses are awarded to plaintiff against defendant Johnston in the

amount of $500.00; defendant Johnston’s attorney is directed to pay this cost out of her own

personal funds and to, within ten days of this order, remit this sum to plaintiff’s counsel at his

address of record. Defendant Johnston is warned that failure to comply with this order may

result in further sanctions. See Local Rule 11-110.

DATED: October 27, 2005.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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Case 2:04-cv-01114-JAM-CMK Document 17 Filed 10/28/05 Page 4 of 4