Lowe #215930 v. Ryan et al

Filing 93

ORDER granting 76 Motion to Quash Plaintiff's Notice for Written Deposition. See document for complete details. Signed by Magistrate Judge Eileen S Willett on 3/8/19. (MSA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard Lowe,
Plaintiff,

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ORDER

v.

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No. CV-18-01140-PHX-DJH (ESW)

Charles L Ryan, et al.,

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Defendants.

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Pending before the Court is Defendants’ Motion to Quash Plaintiff’s Notice for

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Written Deposition (Doc. 76) and Plaintiff’s responses filed as “Plaintiff’s Reply’s to the

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Defendants’ Motion to Quash Plaintiff’s Notice for Written Deposition (Docs.79, 87). No

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reply has been filed, and the time to do so has passed.

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Defendants request that the Court quash Plaintiff’s Notice for Written Deposition

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upon Defendants (“Plaintiff’s Notice”) as untimely.

Defendants correctly note that

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discovery in this case closed on January 2, 2019 (Doc. 14 at 2). Plaintiff’s Notice therefore

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may be denied as untimely as it was filed after the January 2, 2019 discovery deadline.

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(Doc. 14 at 2). See U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099,

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1104 (9th Cir. 1985) (holding that a district court properly denied a motion as untimely

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where it was filed after the applicable scheduling order deadline and the movant “never

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requested a modification” of the scheduling order), superseded by statute on other grounds

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as recognized in Simpson v. Lear Astronics Corp., 77 F.3d 1170 (9th Cir. 1996). Plaintiff

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argues that extraordinary circumstances exist supporting his late discovery requests.

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Plaintiff posits that his incarceration and limited access to the internet are extraordinary

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circumstances supporting written deposition questions to Defendants.

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The Court has broad discretion in supervising the pretrial phase of litigation. See

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Zivhovic v. Southern California Edison Co., 302 F.3d 1080 (9th Cir. 2002). Under Rule

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16(b) of the Federal Rules of Civil Procedure, a district court is required to establish a

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schedule that sets pretrial deadlines. A Rule 16 scheduling order may be “modified only

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for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). This is because

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“[a] scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly

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disregarded by counsel without peril.” Johnson v. Mammoth Recreations, Inc., 975 F.2d

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604, 610 (9th Cir. 1992) (citation and internal quotations marks omitted). “Disregard of

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the order would undermine the court’s ability to control its docket, disrupt the agreed-upon

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course of the litigation, and reward the indolent and the cavalier.” Id. Rule 16(b)’s ‘good

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cause’ standard primarily considers the diligence of the party seeking the amendment. Id.

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at 609. If the movant “was not diligent, the inquiry should end.” Id. “Moreover,

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carelessness is not compatible with a finding of diligence and offers no reason for a grant

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of relief.” Id.

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If a pretrial schedule cannot be met despite the diligence of the party seeking an

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extension of time, the Court may modify its scheduling order. See MILLER & KANE,

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FEDERAL PRACTICE AND PROCEDURE § 1522.1 at 231 (2d ed. 1990) (good cause means

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scheduling deadlines cannot be met despite party’s diligence). “Although the existence or

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degree of prejudice to the party opposing the modification might supply additional reasons

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

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modification. Moreover, where a motion is made to extend a deadline after the deadline

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has expired, the movant must show excusable neglect. See Fed. R. Civ. P. 6(b)(1)(B).

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Although pro se litigants are given leniency in evaluating compliance with the

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technical Rules of Civil Procedure, the rules still apply to pro se litigants. Draper v. Combs,

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792 F.2d 915, 924 (9th Cir. 1986) (“We recognize that the plaintiff represented himself and

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therefore, in evaluating his compliance with the technical rules of civil procedure, we treat

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him with great leniency.”); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (“Although

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we construe pleadings liberally in their favor, pro se litigants are bound by the rules of

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procedure.”).

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The Court finds that Plaintiff has not shown the diligence required for a finding of

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“good cause.” Plaintiff’s request for written depositions were made after the discovery

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deadlines have passed. Plaintiff has not shown excusable neglect justifying his delay and

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supporting a late modification. See Pioneer Inv. Servs. v. Brunswick Assocs. Ltd., 507 U.S.

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380, 392 (1993) (stating that “inadvertence, ignorance of the rules, or mistakes construing

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the rules do not usually constitute ‘excusable’ neglect”). In addition, because Plaintiff has

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failed to show good cause to extend the generous deadlines set forth in the Court’s

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Scheduling Order or excusable neglect for extending those deadlines he already has missed,

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this ends the Court’s inquiry into whether an extension should be granted. See Coleman v.

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Quaker Oats Co., 232 F.3d 1271, 1295 (9th Cir. 2000).

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For the reasons set forth herein,

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IT IS ORDERED granting Defendants’ Motion to Quash Plaintiff’s Notice for

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Written Deposition (Doc. 76).
Dated this 8th day of March, 2019.

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Honorable Eileen S. Willett
United States Magistrate Judge

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