Morgal v. Arpaio et al

Filing 173

ORDER issued denying request for discovery, doc. 161 . Signed by Senior Judge Robert C Broomfield on 8/20/12. (SJF)

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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 Allan K. Morgal, 13 14 15 Plaintiff, vs. Maricopa County Board of, Supervisors, 16 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CIV-07-0670-PHX-RCB O R D E R 18 19 On July 9, 2012, plaintiff filed a “Request for 20 Discovery[.]” Mot. (Doc. 161). Construing that “Request” as a 21 motion, this court allowed the defendant to file a response. 22 Ord. (Doc. 163) at 2:19-22. 23 response on August 1, 2012 (Doc. 165). 24 with this court’s prior order, plaintiff had “seven (7) days 25 after service of [that] response, . . . , to file a reply if 26 he so desire[d][,]” Ord. (Doc. 163) at 2:23-24, or until 27 August 13, 2012 in computing the time in accordance with 28 Fed.R.Civ.P. 6. The defendant timely filed a Thus, in accordance Plaintiff has not filed a reply and the time 1 to do so has passed. 2 ripe for consideration. 3 Plaintiff’s discovery motion is thus The discovery deadline was March 26, 2008 - more than 4 four years ago. 5 remand, in September 2011, plaintiff sought, among other 6 things, to depose Dr. Todd Wilcox, a Medical Director for 7 Correctional Health Services during the relevant time frame. 8 Denying that motion, Magistrate Judge Edward 9 explained that “[d]epositions of the individuals identified 10 in Plaintiff’s motion would have been just as relevant early 11 on in the case as Plaintiff claims they are now.” 12 133) at 2:12-14. 13 seeking to obtain the 2008 deposition of Dr. Todd Wilcox 14 taken in Graves v. Arpaio, 2:77-cv00479-NVW. 15 generically 16 he offers no specific reason whatsoever as to why he needs to 17 obtain this deposition. Mot. (doc. 161) at 1. 18 In seeking to re-open discovery after C. Voss, Ord. (Doc. Despite the foregoing, now plaintiff is Plaintiff refers to a “continuing duty to disclose[,]” but In light of the foregoing, not surprisingly, defendant 19 responds that plaintiff has not shown good cause for 20 modification of the scheduling order as Fed.R.Civ.P. 16(b)(4) 21 requires. 22 Cir. 2005) (citation and internal quotation marks omitted)(“A 23 pretrial order controls the subsequent course of the action 24 unless modified upon a showing of good cause.”) Under that 25 Rule, 26 reasons for seeking modification[]” of the scheduling order. 27 C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 28 F.3d 975, 984 (9th Cir. 2011) (citation and internal quotation See El-Hakem v. BJY Inc., 415 F.3d 1068, 1077 (9th “[t]he focus of inquiry is upon the moving party’s -2- 1 marks omitted), 2 U.S. ___, 132 S.Ct. 1566, 182 L.Ed.2d 168 (U.S. Feb. 21, 3 2012). 4 good cause showing in a recent order in this case. 5 Morgal v. Maricopa County Bd. of Sup’rs, 2012 WL 2029719, at 6 *5-*6 (D.Ariz. June 6, 2012). 7 incorporated by reference and set forth below for convenience 8 sake.1 cert. denied sub nom. C.F. v. Corbett, ___ This court thoroughly discussed the necessary Rule 16 See That discussion is 9 10 11 12 1 [R]ule 16(b)’s “good cause” standard primarily considers the diligence of the party seeking the amendment. . . . Courts within this Circuit have articulated and undertaken [a] three-step inquiry in resolving the question of ‘diligence’ in the context of determining good cause under Rule 16[.] . . . Under that inquiry: [T]o demonstrate diligence under Rule 16's “good cause” standard, the movant may be required to show the following: (1) that [ ]he was diligent in assisting the [c]ourt in creating a workable Rule 16 order; (2) that h[is] noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding h[is] diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference; and (3) that [ ]he was diligent in seeking amendment of the Rule 16 order, once it became apparent that [ ]he could not comply with the order. 13 14 15 16 17 18 19 20 21 . . . The diligence obligation is ongoing. Parties must diligently attempt to adhere to that 22 litigation. . . . schedule throughout the subsequent course of the The Ninth Circuit has also recognized that, [t]he district court may 23 modify the pretrial schedule if it cannot reasonably be met despite the diligence of the party seeking the extension. . . . By the same token 24 though, carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief. . . . Finally, while the existence 25 or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the 26 moving party's reasons for seeking modification. . . . If that party was not 27 diligent, the inquiry should end. . . . Morgal, 2012 WL 2029719, at *6-*7 (citations and internal quotation marks 28 omitted). -3- 1 Plaintiff filed the pending discovery motion on July 9, 2 2012, after this court’s thorough discussion of good cause in 3 Morgal, 2012 WL 2029719. 4 that discussion, plaintiff makes no attempt at all to satisfy 5 the legal standards for good cause, and more specifically for 6 diligence, outlined therein. 7 obtain Dr. Wilcox’s prior deposition is that he “was the 8 medical director during the time of the complaint up until 9 2008.” Ignoring or perhaps overlooking Mot. (Doc. 161) at 1. The only basis for seeking to Clearly that statement does 10 not even come close to satisfying Rule 16(b)(4)’s good cause 11 standard. 12 plaintiff was fully aware of the legal standards which he 13 needed to satisfy to obtain relief under Rule 16(b)(4), yet 14 he made no attempt whatsoever to satisfy those standards. 15 Especially after Morgal, 2012 WL 2029719, Given plaintiff’s complete failure to show diligence so 16 as to meet the Rule 16(b)(4) good cause standard, and because 17 the time for discovery in this case has long since passed, 18 The court hereby DENIES plaintiff’s “Request for 19 20 Discovery” (Doc. 161). DATED this 20th day of August, 2012. 21 22 23 24 25 26 27 28 Copies to counsel of record and plaintiff pro se -4-

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