Emerson v. Corizon Health Services et al

Filing 62

ORDER striking 56 Motion to Take Written Dispositions Plaintiff Moves the Court for an Order Taking Written Dispositions of the Cuslodian [sic] Of Records. IT IS FURTHER ORDERED that by June 22, 2018, Plaintiff shall file a Notice of Service in compliance with LRCiv 5.2 indicating that on May 22, 2018, Plaintiff served a Notice of Deposition of Defendant Corizon Health Inc.'s Custodian of Records. Signed by Magistrate Judge Eileen S Willett on 6/11/18. (MSA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gary John Emerson,
Plaintiff,

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ORDER

v.

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No. CV-15-00093-PHX-ROS (ESW)

Corizon Health Services, et al.,

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Defendants.

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Pending before the Court is Plaintiff’s “Motion to Take Written Dispositions

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Plaintiff Moves the Court for an Order Taking Written Dispositions of the Cuslodian [sic]

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Of Records” (Doc. 56). In his Motion, Plaintiff notices a deposition of the custodian of

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records for Corizon Health Services, listing the questions Plaintiff asks of the custodian

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of records as well as the records Plaintiff seeks. In its Order of May 8, 2018, the Court

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ordered Defendant Corizon to answer Plaintiff’s Second Amended Complaint (Doc. 50 at

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5). Defendant Corizon Health, Inc. answered the Second Amended Complaint on June 4,

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2018 (Doc. 59). All issues as to Defendant Corizon Health, Inc. are now joined. No

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response has been filed.

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I. DISCUSSION
Federal Rule of Civil Procedure 5(d) states that “the following discovery requests

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and responses must not be filed until they are used in the proceeding or the court orders

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filing: depositions, interrogatories, requests for documents or tangible things or to permit

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entry onto land, and requests for admission.” LRCiv 5.2 provides that “[a] ‘Notice of

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Service’ of the disclosures and discovery requests and responses listed in Rule 5(d) of the

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Federal Rules of Civil Procedure must be filed within a reasonable time after service of

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such papers.”

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Plaintiff’s Motion contains a number of discovery requests (Doc. 56), which the

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Clerk of Court has docketed as a “Motion to Take Written Depositions.” Plaintiff has not

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“used” these discovery requests in the proceeding (e.g. by relying upon responses in

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support of a motion, supporting a motion to compel, etc.). Therefore, Plaintiff’s filing of

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the actual discovery requests in the form of a motion instead of a “Notice of Service” is

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in violation of LRCiv 5.2 and Rule 5(d) of the Federal Rules of Civil Procedure.

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Accordingly, the Motion docketed as “Motion to Take Written Depositions” (Doc. 56)

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will be stricken.

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The Court deems the May 22, 2018 filing date of Plaintiff’s “Notice of Written

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Dispositions” (Doc. 56 at 2-4) to be the date of service on Defendant of a Notice of

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Deposition of Custodian of Records. By June 22, 2018, Plaintiff shall file a Notice of

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Service in compliance with LRCiv 5.2 indicating that on May 22, 2018, Plaintiff served a

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Notice of Deposition of Defendant Corizon Health Inc.’s Custodian of Records.

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II. CONCLUSION

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For the reasons set forth above,

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IT IS ORDERED striking Plaintiff’s “Motion to Take Written Dispositions

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Plaintiff Moves the Court for an Order Taking Written Dispositions of the Cuslodian [sic]

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Of Records” (Doc. 56).

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IT IS FURTHER ORDERED that by June 22, 2018, Plaintiff shall file a Notice

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of Service in compliance with LRCiv 5.2 indicating that on May 22, 2018, Plaintiff

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served a Notice of Deposition of Defendant Corizon Health Inc.’s Custodian of Records.

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Dated this 11th day of June, 2018.

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Honorable Eileen S. Willett
United States Magistrate Judge

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