Baker v. Bell et al

Filing 74

ORDER denying 57 Plaintiff's Motion to Compel and 57 Motion for Sanctions. Signed by Magistrate Judge Lawrence O Anderson on 6/3/14.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John P. Baker,
Plaintiff,

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vs.

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Dr. Thomas Bell,

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Defendant.

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No. CV-12-1162-PHX-PGR (LOA)
ORDER

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This matter is before the Court on Plaintiff’s Motion to Compel Discovery and Motion
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for Sanctions. (Doc. 57) Plaintiff has also filed a “Statement of Facts” in support of his motion.
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Defendant Bell has filed a Response and Plaintiff has filed a Reply. (Docs. 60, 61)
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In the motion itself, Plaintiff requests only that the Court order Defendant to provide
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him with a copy of his own medical records. (Doc. 57 at 3) In the Statement of Facts, Plaintiff
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also refers to insufficient responses to interrogatories and requests for production, though he
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fails to directly request that the Court compel additional responses to those discovery requests.
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(Doc. 58 at 7) Regardless, for the reasons that follow, Plaintiff’s motion will be denied.
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As Defendant argues in the Response, Plaintiff’s motion is untimely. The scheduling
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and discovery order issued by the Court on September 26, 2013, provided a deadline of January
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27, 2014 for discovery disputes to be brought to the attention of the Court. (Doc. 32 at 2)
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A scheduling order “may be modified only for good cause and with the judge’s
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consent.” Fed.R.Civ.P. 16(b)(4). For purposes of this rule, “good cause” means the scheduling
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deadlines cannot be met despite the party’s diligence. Johnson v. Mammoth Recreations, Inc.,
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975 F.2d 604, 609 (9th Cir. 1992) (citing 6A Wright, Miller & Kane, Federal Practice and

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Procedure § 1522.1 at 231 (2d ed. 1990)). “The pretrial schedule may be modified if it cannot

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reasonably be met despite the diligence of the party seeking the extension. If the party seeking

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the modification was not diligent, the inquiry should end and the motion to modify should not

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be granted.” Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002)

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(citation and internal quotation marks omitted).

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Here, Plaintiff served his discovery requests on October 10, 2013. (Doc. 34)

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Defendant responded to the discovery requests on November 12 and November 15, 2013.

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(Docs. 37, 39) Plaintiff then filed his first motion to compel on December 13, 2013. (Doc. 41)

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That motion was denied because Plaintiff failed to comply with Fed.R.Civ.P. 37(a)(1) and

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LRCiv1 7.2(j), which require a good faith attempt to resolve the dispute before seeking Court

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intervention. (Doc. 50 at 3) The motion was also denied because it failed to comply with LRCiv

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37.1(a), which requires a motion to compel to set forth, separately from a memorandum of law,

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in separate, distinct, numbered paragraphs, the specific discovery item requested, the response

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received and the reason why the response is deficient.

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Plaintiff filed the instant motion on April 3, 2014, more than two months after the

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deadline. (Doc. 57) The only reference to the deadline in the scheduling order is when Plaintiff

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contends in the Reply that “[i]t is Defendant’s fault for dragging this issue past deadlines.”

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(Doc. 61 at 3) Plaintiff claims he “has done everything he can” to follow the rules regarding

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motions to compel. (Id.)

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The Court disagrees. Although Plaintiff’s first motion to compel was timely, it failed

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to comply with the Rules of Civil Procedure and the Local Rules. Rather than move for an

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extension of the deadline after his first motion was denied, Plaintiff simply filed an untimely

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second motion to compel that contains many of the same deficiencies as the first motion to

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compel. Plaintiff has failed to demonstrate that the deadline in the scheduling order could not

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have been met despite his diligence. Having failed to show good cause to extend the deadline,

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the motion will be denied as untimely.

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Local Rules of Civil Procedure
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In addition, Plaintiff’s second motion to compel, like his first, fails to comply with

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LRCiv 37.1. As noted above, that rule provides that a motion to compel discovery shall “set

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forth, separately from a memorandum of law, the following in separate, distinct, numbered

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paragraphs:

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(1) the question propounded, the interrogatory submitted, the designation
requested or the inspection requested;

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(2) the answer, designation or response received; and
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(3) the reason(s) why said answer, designation, or response is deficient.”
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LRCiv 37.1(a). Civil Local Rule 37.1(a) applies to all pro se litigants, including prisoners. See
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Aros v. Robinson, 2011 WL 643386, at *2 (D. Ariz. Feb. 11, 2011) (“Plaintiff’s failure to
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comply with [LRCiv 37.1(a)] provides an independent sufficient basis to deny his Motion to
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Compel. ”). The requirements of this Local Rule do not apply “where there has been a complete
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and total failure to respond to a discovery request.” LRCiv 37.1(b).
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Here, Plaintiff has failed to set forth each complete response received and explain,
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with respect to each response, why it is deficient. The Court, therefore, finds Plaintiff’s motion
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to compel fails to comply with LRCiv 37.1(a).
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Finally, Defendant asks the Court to award him the reasonable costs and fees
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associated with responding to the motion to compel. The Court, however, finds an award of
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expenses and fees “unjust” at this time. See Fed.R.Civ.P. 37(a)(5)(B). If, however, Plaintiff
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again files a motion to compel that is not “substantially justified,” the Court will order Plaintiff
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to pay Defendant’s costs and fees for responding to the motion.
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Accordingly,
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IT IS ORDERED that Plaintiff’s Motion to Compel Discovery and Motion for
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Sanctions, doc. 57, is DENIED.
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DATED this 3rd day of June, 2014.

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