I. INTRODUCTION

17 18 On May 19, 2021, Plaintiffs Zulema Leon Garcia and Laura Pavloff (collectively, 19 “Plaintiffs”) filed a motion to compel pro se Defendant Maricela Cuevas’s initial disclosures and 20 for monetary sanctions (the “Motion”), based on Defendant Cuevas’s complete failure to provide 21 initial disclosures pursuant to Fed. R. Civ. P. 26(a)(1) and the Court’s Scheduling Order entered 22 December 8, 2020. (Doc. 27.) 23 After having reviewed the motion and supporting documents, the matter was deemed 24 suitable for decision without oral argument pursuant to Local Rule 230(g), and the Court vacated 25 the hearing set for June 16, 2021. (Doc. 31.) Defendant Cuevas belatedly filed an opposition to the 26 Motion on June 17, 2021. (Doc. 33.) For the reasons set forth below, Plaintiffs’ motion to compel 27 is DENIED as MOOT and the request for sanctions is DENIED. 28 /// 1 2 On November 25, 2019, Plaintiffs filed a complaint against Defendants Arnulfo Garibay and 3 Maricela Cuevas (collectively, “Defendants”) alleging discrimination in violation of Title VII of the 4 Civil Rights Act, 42 U.S.C. § 2000e-2(a)(1) et seq., and retaliation and harassment under state law.1 5 (Doc. 1.) Plaintiffs allege that Defendants violated Title VII and state law by subjecting them to 6 harassment on the basis of their sex and race, by reducing their pay and hours, and by ultimately 7 terminating Plaintiffs’ employment. (See id.) Plaintiffs seek lost wages and benefits, general 8 damages, punitive damages, reinstatement, and attorney’s fees. (Id. at 33–34.) 9 The Court held a scheduling conference and entered its Scheduling Order on December 8, 10 2020. (Docs. 25, 26.) The Scheduling Order required, inter alia, that the parties “exchange the 11 initial disclosures required by Fed. R. Civ. P. 26(a)(1) on or before January 15, 2021.” (Doc. 26 at 12 ¶ 4.) Plaintiffs provided their initial disclosures to Defendants on November 25, 2020.2 (See Doc. 13 27-2, Declaration of Tatiana L. Altman (“Altman Decl.”) ¶ 4.) 14 Defendant Cuevas failed to provide her initial disclosures by January 15, 2021. On February 15 26, 2021, Plaintiffs’ counsel called and left a message for Defendant Cuevas in Spanish through an 16 interpreter, inquiring as to the status of her initial disclosures. (See Altman Decl. ¶¶ 7–8) Plaintiffs’ 17 counsel sent Defendant Cuevas a follow-up email in Spanish on March 11, 2021, identifying the 18 documents and information that Defendant Cuevas needed to provide in her initial disclosures and 19 requesting that they be served immediately. (See id. ¶ 9 and Exhs. 1 & 2; Doc. 27-3, Declaration of 20 Luis E. Castillo (“Castillo Decl”) ¶ 4.) Plaintiffs’ counsel spoke with Defendant Cuevas on March 21 19, 2021, with the aid of a Spanish interpreter. (See Altman Decl. ¶ 10.) Counsel agreed to provide 22 Defendant Cuevas until March 31, 2021, to provide her disclosures, and explained that if they were 23 not received by that date, Plaintiffs would seek an order from the Court compelling them. (See id.) 24 Defendant Cuevas stated that she understood. (See id.) Defendant Cuevas responded to Plaintiffs’ 25 counsel’s March 11 email on March 24, 2021, and stated (in Spanish) that she would provide her 26 initial disclosures earlier, on March 29, 2021. (See Altman Decl. ¶ 11 and Exh. 3.) 27 1 Defendant Garibay is currently in default. (See Docs. 19 & 20.) 28 2 The date indicated in the Motion papers is November 25, 2021, which the Court presumes to be a scrivener’s error. 1 Plaintiffs did not receive Defendant Cuevas’s disclosures on either March 29 or March 31, 2 2021. (See id. ¶ 12.) On April 27, 2021, Plaintiffs’ counsel again emailed Defendant Cuevas to 3 inform her that her initial disclosures were overdue, and that Plaintiffs would file a motion to compel 4 the disclosures and seek monetary sanctions after May 4, 2021. (See id. ¶ 13 and Exh. 5.) A printed 5 copy of this email in letter form was hand-delivered to Defendant Cuevas on April 28, 2021. (See 6 Castillo Decl. ¶ 7; Altman Decl. ¶ 14 and Exh. 6.) On May 19, 2021, Plaintiffs filed the instant 7 motion to compel, along with a request for sanctions, seeking $1,500 in attorney’s fees and costs 8 incurred in this dispute. 9 In her opposition, Defendant Cuevas states that she had her initial disclosures prepared and 10 “received a signed proof of service” from the person that served them that the disclosures were 11 served by mail on March 29, 2021.3 (Doc. 33, Declaration of Maricela Cuevas (“Cuevas Decl.”) ¶ 12 6 and Exh. B.) According to Defendant Cuevas, she was unaware until the filing of the Motion that 13 Plaintiffs had not received her initial disclosures, and, once learned, she served them via email to 14 Plaintiffs’ counsel on June 15, 2021. (Id.) 15 III. LEGAL STANDARD 16 Rule 26(a)(1) sets forth the disclosures that a party must provide without awaiting a 17 discovery request unless exempted, stipulated or ordered by the court. See Fed. R. Civ. P. 26(a)(1). 18 Rule 37(a)(3)(A) permits a party to seek sanctions when the other party fails to provide Rule 26(a) 19 initial disclosures. Further, 20 [if] a party fails to provide information . . . as required by Rule 26(a) . . . the party is not allowed to use that information . . . to supply evidence on a motion, at a 21 hearing, or at a trial, unless the failure was substantially justified or is harmless. In 22 addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: 23 (A) may order payment of the reasonable expenses, including attorney’s fees, 24 caused by the failure. 25 Fed. R. Civ. P. 37(c)(1)(A) (emphasis added). The burden is on the party facing sanctions to prove 26 3 Although Defendant Cuevas’s opposition to the Motion was untimely by a week, the Court in its discretion will 27 nevertheless consider it, in the interests of justice. However, the Court cautions Defendant Cuevas that it expects strict compliance with the Local Rules in the future. See Creamer v. City of Tulare, No. 1:15-cv-00916-DAD-EPG, 2016 28 WL 4524760, at *8 (E.D. Cal. Aug. 30, 2016) (A pro se litigant “is nonetheless required to comply with the Federal 1 harmlessness. Yeti By Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d. 1101, 1107 (9th Cir. 2001). 2 If the disclosure is provided after a motion is filed, the court shall award attorney's fees 3 unless the movant did not make a good faith effort to obtain disclosures without court action, or the 4 opposing party's nondisclosure was justified, or other circumstances make the award of expenses 5 unjust. Fed. R. Civ. P. 37(a)(4)(A). 6 IV. DISCUSSION 7 As Defendant Cuevas has served her initial disclosures (see Doc. 33), the Court denies the 8 Motion to compel such disclosures as moot. See Mejia v. Marauder Corp., No. C06-00520 HRL, 9 2006 WL 3050853, at *2 (N.D. Cal. Oct. 24, 2006). Regarding Plaintiffs’ request for sanctions, 10 Defendant Cuevas has not shown she was substantially justified in failing to timely serve her initial 11 disclosures. Defendant Cuevas asserts that she “most of the documents sought by the Initial 12 Disclosures have not been accessible to me” (Cuevas Decl. ¶ 4), but her disclosure obligation under 13 Rule 26 extends only to those documents within her possession, custody, or control. See Fed. R. 14 Civ. P. 26(a)(1)(a)(ii). Nor does the fact that she doesn’t “routinely check” her email accounts 15 (Cuevas Decl. ¶ 5) justify her delayed disclosure, as the Scheduling Order, which set forth the 16 January 15, 2021, initial disclosures deadline, was served on Defendant Cuevas via U.S. mail—not 17 email. (See Docket). 18 The Court finds that Defendant Cuevas’s failure is harmless. There is no apparent prejudice 19 to Plaintiffs: as Defendant Cuevas points out (see Cuevas Decl. ¶ 8), fact discovery does not close 20 until August 3, 2021, and no trial date has been set. It also appears that Defendant Cuevas 21 reasonably (albeit incorrectly) believed that her initial disclosures were provided on the date agreed 22 upon by the parties and prior to the Motion being filed. Under the circumstances presented, 23 sanctions are not warranted, and Plaintiffs’ request for sanctions is therefore denied.

V. ORDER

24 25 Based on the foregoing, Plaintiffs Zulema Leon Garcia’s and Laura Pavloff’s motion to 26 compel is DENIED AS MOOT and their request for sanctions is DENIED. (Doc. 27). Defendant 27 Cuevas is cautioned, however, that future failures to comply with the Court’s Scheduling Order 28 and/or her discovery obligations may result in sanctions, including but are not limited to monetary 1 sanctions or default. 2

IT IS SO ORDERED.

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Sheila K. Oberto 4 Dated: June 17, 2021 /s/ .

UNITED STATES MAGISTRATE JUDGE

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