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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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Allan K. Morgal,
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Plaintiff,
vs.
Maricopa County Board of,
Supervisors,
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Defendant.
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No. CIV-07-0670-PHX-RCB
O R D E R
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On July 9, 2012, plaintiff filed a “Request for
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Discovery[.]” Mot. (Doc. 161). Construing that “Request” as a
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motion, this court allowed the defendant to file a response.
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Ord. (Doc. 163) at 2:19-22.
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response on August 1, 2012 (Doc. 165).
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with this court’s prior order, plaintiff had “seven (7) days
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after service of [that] response, . . . , to file a reply if
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he so desire[d][,]” Ord. (Doc. 163) at 2:23-24, or until
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August 13, 2012 in computing the time in accordance with
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Fed.R.Civ.P. 6.
The defendant timely filed a
Thus, in accordance
Plaintiff has not filed a reply and the time
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to do so has passed.
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ripe for consideration.
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Plaintiff’s discovery motion is thus
The discovery deadline was March 26, 2008
- more than
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four years ago.
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remand, in September 2011, plaintiff sought, among other
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things, to depose Dr. Todd Wilcox, a Medical Director for
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Correctional Health Services during the relevant time frame.
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Denying that motion, Magistrate Judge Edward
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explained that “[d]epositions of the individuals identified
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in Plaintiff’s motion would have been just as relevant early
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on in the case as Plaintiff claims they are now.”
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133) at 2:12-14.
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seeking to obtain the 2008 deposition of Dr. Todd Wilcox
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taken in Graves v. Arpaio, 2:77-cv00479-NVW.
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generically
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he offers no specific reason whatsoever as to why he needs to
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obtain this deposition. Mot. (doc. 161) at 1.
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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
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responds that plaintiff has not shown good cause for
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modification of the scheduling order as Fed.R.Civ.P. 16(b)(4)
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requires.
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Cir. 2005) (citation and internal quotation marks omitted)(“A
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pretrial order controls the subsequent course of the action
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unless modified upon a showing of good cause.”) Under that
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Rule,
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reasons for seeking modification[]” of the scheduling order.
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C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist., 654
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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
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marks omitted),
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U.S. ___, 132 S.Ct. 1566, 182 L.Ed.2d 168 (U.S. Feb. 21,
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2012).
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good cause showing in a recent order in this case.
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Morgal v. Maricopa County Bd. of Sup’rs, 2012 WL 2029719, at
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*5-*6 (D.Ariz. June 6, 2012).
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incorporated by reference and set forth below for convenience
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sake.1
cert. denied sub nom. C.F. v. Corbett, ___
This court thoroughly discussed the necessary Rule 16
See
That discussion is
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[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.
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to
adhere
to
that
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schedule
throughout
the
subsequent
course
of
the
The Ninth Circuit has also recognized that, [t]he district court may
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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
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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
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diligent, the inquiry should end. . . .
Morgal, 2012 WL 2029719, at *6-*7 (citations and internal quotation marks
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Plaintiff filed the pending discovery motion on July 9,
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2012, after this court’s thorough discussion of good cause in
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Morgal, 2012 WL 2029719.
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that discussion, plaintiff makes no attempt at all to satisfy
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the legal standards for good cause, and more specifically for
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diligence, outlined therein.
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obtain Dr. Wilcox’s prior deposition is that he “was the
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medical director during the time of the complaint up until
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2008.”
Ignoring or perhaps overlooking
Mot. (Doc. 161) at 1.
The only basis for seeking to
Clearly that statement does
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not even come close to satisfying Rule 16(b)(4)’s good cause
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standard.
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plaintiff was fully aware of the legal standards which he
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needed to satisfy to obtain relief under Rule 16(b)(4), yet
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he made no attempt whatsoever to satisfy those standards.
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Especially after Morgal, 2012 WL 2029719,
Given plaintiff’s complete failure to show diligence so
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as to meet the Rule 16(b)(4) good cause standard, and because
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the time for discovery in this case has long since passed,
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The court hereby DENIES plaintiff’s “Request for
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Discovery” (Doc. 161).
DATED this 20th day of August, 2012.
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Copies to counsel of record and plaintiff pro se
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