BOYD N. BOLAND, Magistrate Judge.
This matter arises on the plaintiff's
Ms. Hoffman is proceeding pro se. "In general, litigants proceeding pro se are held to the same procedural standards as those with counsel."
Pursuant to the Scheduling Order [Doc. # 34], Ms. Hoffman was required to make Rule 26(a)(1) disclosures on or before July 23, 2013.
The plaintiff served written discovery, including interrogatories, requests for production of documents, and requests for admissions on September 17, 2013. Affidavit of Thomas P. Howard [Doc. # 43-1] at ¶10. Responses were due on October 21, 2013. Ms. Hoffman did not respond to the written discovery requests on that date or at any time prior to the filing of the Motion for Default Judgment.
Importantly, the plaintiff did not bring to Ms. Hoffman's attention the disclosure and discovery failures; there is no evidence that the plaintiff ever conferred under D.C.COLO.LCivR 7.1(a) with Ms. Hoffman about her failures to make disclosures and discovery; and the plaintiff never moved to compel the disclosures or discovery. The discovery requests were served by United States mail, first class postage prepaid, as permitted under Fed. R. Civ. P. 5(b)(2)(C). Ms. Hoffman claims that she did not receive the requests. The dispute concerning delivery of the requests should have been resolved months ago through a conference under D.C.COLO.LCivR 7.1(a).
(Internal quotation and citation omitted.)
Under these circumstances, the severe sanction of a default judgment is not appropriate.
Ms. Hoffman's unexcused failures to comply with her disclosure and discovery obligations may not be overlooked, however. Consequently, I have construed the Motion for Default Judgment as a motion to compel, which is granted.
I will not attempt to determine at this time the adequacy of Ms. Hoffman's answers to the plaintiff's interrogatories. I note only that Rule 33(b)(3) requires that "[e]ach interrogatory must. . . be answered separately and fully in writing under oath," and Rule 33(b)(5) requires that "the person who makes the answers must sign them. . . ." The answers currently are not signed and are not made under oath. Any additional inadequacies in the interrogatory answers which may be identified by the plaintiff must be addressed in a meaningful conference under D.C.COLO.LCivR 7.1(a) and, if not resolved, may be raised in a motion to compel discovery.
Similarly, I will not attempt at this time to determine the adequacy of Ms. Hoffman's production of documents in response to the plaintiff's request. I note, however, that Ms. Hoffman is required to produce all responsive documents in her "possession, custody, or control," Fed. R. Civ. P. 34(a), and not merely the "available documents."
Finally, Fed. R. Civ. P. 36(a)(3) provides that "[a] matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney." Where, as here, service was by mail, it is "complete upon mailing." Fed. R. Civ. P. 5(b)(2)(C). It is undisputed that Ms. Hoffman did not answer or object to the requests for admissions within 30 days after service. Consequently, the admissions are deemed admitted. Rule 36(b) provides a mechanism by which an admission may be withdrawn or amended, but Ms. Hoffman has not availed herself of that procedure. Consequently, the plaintiff's requests for admissions stand admitted until such time as there is an order to the contrary.
I have identified several deficiencies in Ms. Hoffman's tardy discovery responses—
IT IS ORDERED:
(1) The Motion for Default Judgment is DENIED insofar as it seeks the entry of default judgment as a sanction for failure to make disclosures and discovery as required, and GRANTED insofar as it may be construed as a motion to compel discovery;
(2) Ms. Hoffman shall make full disclosures and discovery responses that comply with the formalities of the Federal Rules of Civil Procedure on or before June 17, 2014; and
(3) A final pretrial conference is set for August 6, 2014, at 2:30 p.m., in Courtroom 401, 4th floor, Alfred A. Arraj United States Courthouse, 901 19th Street, Denver, Colorado. A Final Pretrial Order shall be prepared by the parties and submitted to the court no later than July 30, 2014.