Page 1 – OPINION AND ORDER 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PENDLETON DIVISION 

KATHERINE SARNOWSKI, Personal Case No. 2:16-cv-00176-SU 

Representative of the Estate of Damion 

Banks, OPINION

AND ORDER 

 Plaintiff, 

v. 

COLLETTE PETERS, Personally; TONIA 

RIDLEY, Personally; BRIDGETT 

WHELAN, Personally; JOHN MYRICK, 

Personally; and SGT. ANNETTE 

HOUSTON, Personally, 

 Defendants. 

_________________________________________ 

SULLIVAN, United States Magistrate Judge: 

Before the Court is defendants’ Motion to Compel Response to Defendants’ First Request 

for Production of Documents and First Request for Interrogatories. (Docket No. 37). In her 

response to defendants’ Motion, plaintiff claims she has cured any deficiencies in her responses 
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to defendants’ discovery requests. (Docket No. 41). The Court has detailed the factual and 

procedural background of the parties’ discovery disputes in its earlier Opinion and Order on 

plaintiff’s Motion to Compel. (Docket No. 44). For the following reasons, the Court GRANTS 

defendants’ Motion to Compel. 

LEGAL STANDARD 

Under Fed. R. Civ. P. 37(a)(3)(B)(iii) and (iv), a party may move for an order compelling 

answers to interrogatories or the production of requested documents. 

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. 

Fed. R. Civ. P. 26(b)(1). 

“Failure to object to a discovery request within the time permitted by the Federal Rules of 

Civil Procedure, or within the time to which the parties have agreed, constitutes a waiver of any 

objection.” L.R. 26-5(a); see also Fed. R. Civ. P. 33(b)(4) (“Any ground not stated in a timely 

objection is waived . . . .”). 

If the court grants a motion to compel discovery responses, “the court must, after giving 

an opportunity to be heard, require the party . . . whose conduct necessitated the motion, the 

party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred 

in making the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A) (emphasis added). 

A party who “fails to obey an order to provide or permit discovery” may be sanctioned, 

including by rendering default judgment. Fed. R. Civ. P. 37(b)(2)(A), (b)(2)(A)(vi). 
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ANALYSIS 

Defendants seek an order compelling plaintiff to respond to their First Request for 

Production of Documents and First Set of Interrogatories. Defendants served those discovery 

requests, along with their First Request for Admissions, on April 7, 2017. Washington Decl. ¶ 2, 

Ex. 1-3 (Docket No. 38). Plaintiff’s responses to those requests were due May 8, 2017. Id. On 

May 8, 2017, plaintiff provided “partial responses” to the requests for admission, but no 

responses to the requests for production or interrogatories. Id. ¶ 3. On May 9, 2017, defendants 

emailed plaintiff’s counsel asking when they could expect responses to the requests for 

production and interrogatories, and plaintiff’s counsel responded, “Soon.” Id., Ex. 4. On May 

10, 2017, defendants again emailed plaintiff’s counsel, stating that because plaintiff failed to 

respond to the requests for production or interrogatories, she waived her right to object to those 

requests. Id., Ex. 5; Fed. R. Civ. P. 33(b)(2), 34(b)(2)(A). Defendants also stated that because 

plaintiff had failed to respond to certain requests for admission, those requests would be deemed 

admitted pursuant to Fed. R. Civ. P. 36(a)(3). Washington Decl., Ex. 5 (Docket No. 38). “As of 

the date of the filing of Defendants’ Motion to Compel, Plaintiff has yet to serve Defendants 

with any responses or objections to Defendants’ discovery requests.” Id. ¶ 3. 

In her response to defendants’ Motion, plaintiff asserts that “Defendants did not properly 

confer by phone or otherwise, prior to filing this Motion to Compel.” Pl. Resp., at 1 (Docket No. 

41). “However,” plaintiff continues, “the issue is moot as Plaintiff has already produced 

responses this week that shall cure the deficiencies.” Id. Plaintiff filed that Response on July 27, 

2017. That Response provides no substantive objection to defendants’ requests or Motion. 

Plaintiff’s argument that defendants did not comply with Local Rule 7-1(a)(1)(A)’s 

conferral requirement is misplaced; the June 14, 2017, Status Conference, in which the Court 
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addressed the parties’ discovery disputes and gave them thirty days to submit their motions to 

compel (Docket No. 36), was the conferral. 

The Court has reviewed defendants’ discovery requests and finds that they are relevant 

and proportional, pursuant to Fed. R. Civ. P. 26(b)(1). 

Because reply briefing is generally not permitted on motions to compel, L.R. 26-3(c), 

defendants have not had the opportunity to address whether plaintiff produced discovery 

responses that cure the alleged deficiencies, as counsel claimed. The Court assumes that plaintiff 

has indeed provided satisfactory responses to defendants’ requests for production and 

interrogatories. Nevertheless, plaintiff has not objected to or disputed defendants’ 

characterization of the parties’ discovery conduct, including regarding plaintiff’s failure to object 

to defendants’ discovery requests or to timely respond. Accordingly, the Court GRANTS 

defendants’ Motion to Compel. To the extent that plaintiff has failed to object or respond to 

defendants’ discovery requests, she has waived any objection and shall fully and properly 

respond to them. Failure to so respond may result in the imposition of sanctions, including 

dismissal. Fed. R. Civ. P. 37(b)(2)(A)(vi). 

Defendants, citing Fed. R. Civ. P. 37(a)(5)(A), request that the Court require plaintiff to 

pay defendants’ expenses in bringing their Motion, including attorney’s fees. Defendants, 

however, have provided no evidence of expenses or fees. (Plaintiff does not address the fees 

request in her Response.) The Court is unable presently to determine the merits, reasonableness, 

or amount of any costs or fees request. Defendants may separately move for an award of 

expenses, including by addressing the merits of any award and the amount requested. 
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CONCLUSION 

For these reasons, the Court GRANTS defendants’ Motion to Compel Response to 

Defendants’ First Request for Production of Documents and First Request for Interrogatories. 

(Docket No. 37). Plaintiff shall fully and properly respond to defendants’ discovery requests, to 

the extent she has not done so already. 

IT IS SO ORDERED. 

 DATED this 20th day of October, 2017. 

 /s/ Patricia Sullivan 

 PATRICIA SULLIVAN 

 United States Magistrate Judge