Meyers v. Arpaio et al

Filing 36

ORDER denying Plaintiff's 27 Motion to Compel; denying 30 Motion to Compel. Signed by Magistrate Judge Lawrence O Anderson on 9/6/11.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Paul Samuel Meyers,
Plaintiff,

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vs.

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Arpaio, et al.,
Defendants.

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No. CV-10-1775-PHX-JAT (LOA)
ORDER

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This matter arises on Plaintiff’s two Motions to Compel. (Docs. 27, 30) Defendants

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oppose the first motion as vague and untimely, doc. 29, and did not respond to the second

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motion.

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I. Background

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Plaintiff filed this § 1983 civil rights action on August 19, 2010 and amended the

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complaint on August 30, 2010. (Docs. 1, 5) After screening the Amended Complaint and

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Defendants answered, the Court entered a scheduling and discovery order on December 23,

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2010. (Doc. 12) The discovery dispute and dispositive motion deadlines were April 25, 2011

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and June 24, 2011, respectively. (Id. at 2) The scheduling and discovery order makes clear that

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[t]he Court will not entertain motions to compel discovery, motions for sanctions,
motions for protective orders, or the like unless and until there has been compliance
with the following procedure: In the event of a dispute over discovery, the parties
must confer in good faith, in person or by telephone, and attempt to resolve the
dispute. Rule 37(a), Federal Rules of Civil Procedure; Rule 7.2(j), Rules of Practice
of the U.S. District Court for the District of Arizona.

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(Id. at 3) (emphasis in original).
In both motions, Plaintiff seeks an order compelling Defendant Pickett to produce

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video evidence. (Docs. 27, 30) Plaintiff filed his first motion on July 8, 2011. (Id.) On July

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15, 2011, Defendants objected to Plaintiff’s motion, stating that (1) Plaintiff did not consult with

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the Defendant to resolve the issue before filing the motion, and (2) the motion is untimely

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because the December 23, 2010 Scheduling Order, doc. 12, established an April 25, 2011

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deadline for notifying the Court of discovery disputes. Rather than filing a reply, on July 29,

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2011, Plaintiff filed a second Motion to Compel seeking the same relief.

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II. Rule 16, Fed.R.Civ.P.

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“While the scope of the district court’s authority over pretrial proceedings is broad,

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it is tempered in pro se prisoner civil rights cases. For example, Federal Rule of Civil Procedure

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26 specifically exempts pro se prisoner lawsuits from the initial disclosure requirements,

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Fed.R.Civ.P. 26(a)(1)(B)(iv), and from initial conference requirements, Fed.R.Civ.P. 26(f).” In

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re Arizona, 528 F.3d 652, 657 (9th Cir. 2008) (per curiam ), cert. denied, ___ U.S. ___, 129

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S.Ct. 2852 (2009). “The district court is not required to conduct a pretrial conference in

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prisoner cases, though there is no rule forbidding it. See Fed.R.Civ.P. 16(a).” Id. Nevertheless,

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a scheduling order may be modified upon a showing of good cause. Fed.R.Civ.P. 16(b). Good

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cause exists when the moving party demonstrates he or she cannot meet the deadline despite

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exercising due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.

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1992). The “good cause” inquiry “focuses on the reasonable diligence of the moving party.”

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Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n. 6 (9th Cir. 2007) (citing Johnson, 975 at 609).

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The scheduling order “controls the course of the action unless the court modifies it[]” and Rule

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“16 is to be taken seriously.” Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994).

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District “courts generally look[] to the deadline for completion of discovery in

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considering whether a motion to compel has been timely filed.” Rogers v. Brauer Law Offices,

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PLC, 2011 WL 3665346, * 4 (D.Ariz., August 22, 2011) (quoting Days Inn Worldwide, Inc. v.

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Sonia Invs., 237 F.R.D. 395, 397 (N.D.Tex.2006) (citing Rossetto v. Pabst Brewing Co., 217

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F.3d 539, 542 (7th Cir. 2000) (finding no merit to contention that district court’s denial of
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discovery motion was error where the motion was filed two months after the date set by the

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court for the completion of discovery and the plaintiffs gave no excuse for tardiness); Ginett v.

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Fed. Express, 166 F.3d 1213, 1998 WL 777998, at * 5 (6th Cir. 1998) (Table) (finding no abuse

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of discretion when the trial court denied a motion to compel filed two months after the

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discovery deadline, because the plaintiff knew of the document at issue long before the

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discovery deadline).

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The district court in Days Inn Worldwide identified several factors the courts have

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considered in determining whether a motion to compel filed after the discovery deadline was

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untimely or should be permitted: “1) the length of time since the expiration of the deadline, (2)

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the length of time that the moving party has known about the discovery, (3) whether the

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discovery deadline has been extended, (4) the explanation for the tardiness or delay, (5) whether

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dispositive motions have been scheduled or filed, (7) the age of the case, (8) any prejudice to

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the party from whom late discovery was sought, and (9) disruption of the court’s schedule.”

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237 F.R.D. at 398. The Court will analyze these factors to determine whether good cause exists

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to consider Plaintiff’s untimely discovery motion which, if granted, would necessarily result in

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a de facto modification of the scheduling order.

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III. Discussion

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Plaintiff’s untimely discovery motion was first filed on July 8, 2011, over two months

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after the April 25, 2011 discovery dispute deadline. (Docs. 12, 27) That is a significant delay

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considering the likelihood that video recordings of the kind requested - Nice Vision video

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recordings of prison activities - are not saved indefinitely. A two-month delay would only

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decrease the likelihood of the video being available.

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Plaintiff knew about the evidence in question at least four months before the April 25

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deadline as shown by his letter to the defendants dated January 1, 2011. (Doc. 27) While this

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Court appreciates, as the rules require, Plaintiff’s genuine efforts to personally and informally

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resolve the discovery dispute, there comes a point in every case, as deadlines approach, when

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a motion to compel must be filed. In this case, that point came before July 8, which was two

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months after the discovery dispute deadline, doc. 12, and at least six months after Plaintiff knew

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about the evidence, doc. 27.

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The Court has not extended, and Plaintiff has not requested that the Court extend, the

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discovery dispute deadline. Moreover, Plaintiff does not explain in either Motion to Compel

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why he failed to meet the discovery deadline, or even acknowledge that he failed to meet that

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deadline. “[I]nadvertence, ignorance of the rules, or mistakes construing the rules do not

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usually constitute ‘excusable’ neglect.” Pioneer Inv. Servs. v. Brunswick Assocs. Ltd., 507 U.S.

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380, 392 (1993).

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Defendants filed a motion for summary judgment on June 24, doc. 23, two weeks

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before Plaintiff filed the first motion to compel, doc. 27. Thus, extending the discovery dispute

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deadline now would necessarily disrupt the Court’s case management.

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Neither Plaintiff nor Defendants explain how denying or granting Plaintiff’s discovery

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motion prejudices him or them. In the Ninth Circuit, however, “[p]rejudice is not the relevant

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inquiry. Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party

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seeking the amendment.” Global Bldg. Sys. v. Brandes, 2008 WL 477876, at * 3 (D.Ariz., Feb.

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19, 2008) (quoting Johnson, 975 F.2d at 609) (internal quotation marks omitted). “Although

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the existence or degree of prejudice to the party opposing the modification might supply

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additional reasons to deny a motion, the focus of the inquiry is upon the moving party’s reasons

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for seeking modification [of the Rule 16 schedule]. If that party was not diligent, the inquiry

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should end.” Id. (emphasis added). As previously mentioned, Plaintiff has not been diligent in

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pursuing a discovery order before the discovery dispute deadline expired and, therefore, the

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inquiry will end.

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IV. Conclusion
After weighing the above factors, the Court concludes that good cause does not exist

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to consider Plaintiff’s untimely motion.
Accordingly,

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IT IS ORDERED that Plaintiff’s Motions to Compel, docs. 27, 30, are DENIED.

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Dated this 6th day of September, 2011.

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