Palmer v. Woodford et al

Filing 136

ORDER DENYING 129 Plaintiff's Motion to Modify the Discovery and Scheduling Order signed by Magistrate Judge Barbara A. McAuliffe on 11/22/2013. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILL MOSES PALMER, III,

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Plaintiff,

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v.

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JORDNT, et al.,

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Defendants.

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Case No.: 1:06-cv-00512-LJO-BAM PC
ORDER DENYING PLAINTIFF’S MOTION TO
MODIFY THE DISCOVERY AND SCHEDULING
ORDER (ECF No. 129)

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I.

Introduction

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Plaintiff Will Moses Palmer, III, (“Plaintiff”) is a state prisoner proceeding se and in forma

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pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on

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April 28, 2006. (ECF No. 1.) This action now proceeds on Plaintiff’s second amended complaint

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against Defendants Jordnt and Bardonnex for retaliation and denial of access to the courts. (ECF Nos.

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111, 112, 122.)

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On December 27, 2011, the Court issued a Discovery and Scheduling Order, which set the

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deadline for completion of discovery as August 27, 2012, and the dispositive motion deadline as

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November 5, 2012. (ECF No. 81.) On September 13, 2013, the Court granted Defendants’ motion to

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modify the Discovery and Scheduling Order, allowing Defendants to depose Plaintiff within thirty

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days and to file and serve their dispositive motion within sixty days. (ECF No. 124.)

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Currently pending before the Court is Plaintiff’s motion to modify the discovery and

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scheduling order, which was filed on October 11, 2013. (ECF No. 129.) On November 4, 2013, the

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Court directed Defendants to file an opposition or statement of non-opposition to Plaintiff’s motion.

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(ECF No. 133.) On November 18, 2013, Defendants filed their response. (ECF No. 134.) The Court

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finds a reply unnecessary and the matter is deemed submitted. Local Rule 230(l).

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II.

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A. Legal Standard

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Pursuant to Rule 16(b), a scheduling order “may be modified only for good cause and with the

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Discussion

judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily considers the

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diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

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609 (9th Cir. 1992). The district court may modify the scheduling order “if it cannot reasonably be

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met despite the diligence of the party seeking the extension.” Id. If the party was not diligent, the

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inquiry should end. Id.

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B. Depositions of Defendants

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Plaintiff appears to request modification of the Discovery and Scheduling Order to allow him

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to depose defendants during his own deposition at defendants’ expense. Defendants do not oppose

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Plaintiff’s request to modify the discovery deadline for the sole purpose of deposing them, but object

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to Plaintiff’s request that he be allowed to depose Defendants during his own deposition at

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Defendants’ expense.

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Plaintiff’s request to extend the discovery deadline to depose Defendants during his deposition

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shall be denied for two separate reasons. First, the record in this action reflects that Plaintiff’s

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deposition was completed on November 8, 2013. (ECF No. 135, p. 3.) Thus, Plaintiff’s request for

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Defendants to appear at his deposition is now moot.

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Second, Plaintiff’s request ignores the requirements of Federal Rule of Civil Procedure 30.

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Rule 30 requires the party who wants to depose a person to provide written notice of the deposition.

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Rule 30 also requires the party who notices the deposition to state the method of recording, bear the

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costs of such recording and arrange for an officer to conduct the deposition. Fed. R. Civ. P. 30(b)(1),

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(3), (5). Plaintiff has not provided any authority for allowing the depositions to be conducted at
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Defendants’ expense. Further, there is no indication that Plaintiff can comply with the requirements of

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Rule 30. At a minimum, Plaintiff admits that he cannot afford the costs associated with deposing

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defendants. (ECF No. 129, p. 2.) Accordingly, an extension of the discovery deadline for the purpose

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of allowing Plaintiff to depose Defendants at his own expense would be futile.

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C. Motion to Compel

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In addition to his deposition request, Plaintiff requests modification of the discovery deadline

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to allow Defendants time to answer the interrogatories previously submitted for Defendant Lopez.

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Plaintiff also seeks an extension of the discovery deadline for the purpose of allowing Defendants to

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produce certain requested discovery or for Plaintiff to file a motion to compel. Plaintiff has not

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provided good cause to modify the discovery and scheduling order for these purposes.
First, Defendant Lopez is no longer a party to this action. Accordingly, the remaining

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Defendants are not obligated to answer interrogatories directed at Defendant Lopez. Second, to the

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extent Plaintiff seeks responses to document requests or an opportunity to file a motion to compel

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against the remaining defendants, Plaintiff has not demonstrated diligence in seeking to modify the

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Discovery and Scheduling Order.

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Plaintiff purportedly believed that a new discovery schedule would be set following the filing

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of his second amended complaint. Plaintiff filed his second amended complaint on April 6, 2012.

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(ECF No. 103.) Subsequently, on June 8, 2012, the Court screened Plaintiff’s second amended

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complaint and determined that he stated a cognizable claim against Defendants Lopez, Jordnt, and

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Bardonnex for retaliation and denial of access to the courts in violation of the First Amendment, but

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did not state any other cognizable claims. The Court ordered Plaintiff to either file a third amended

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complaint or notify the Court of his willingness to proceed only on the cognizable claim against

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Defendants Lopez, Jordnt, and Bardonnex. At that time, the Court also denied Plaintiff’s motion to

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compel and Plaintiff’s motion to amend the Discovery and Scheduling Order. The Court expressly

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notified Plaintiff that discovery would be open until August 27, 2012. (ECF No. 109.)

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On June 22, 2012, Plaintiff notified the Court of his intent to proceed with the second amended

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complaint against Defendants Lopez, Jordnt and Bardonnex. (ECF No. 110.) On July 23, 2012, the

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Court ordered service on the sole defendant that had not yet appeared in the action, Defendant Lopez.
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(ECF No. 112). On July 25, 2012, Defendants Jordnt and Bardonnex filed their answer to the second

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amended complaint. (ECF No. 115.)

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On January 7, 2013, the Court issued a second order directing service of Defendant Lopez.

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(ECF No. 118.) On May 16, 2013, the summons for Defendant Lopez was returned unexecuted.

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(ECF No. 119.) On May 20, 2013, the Court ordered Plaintiff to show cause why Defendant Lopez

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should not be dismissed from this action for failure to provide sufficient information to effectuate

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service of process. (ECF No. 120.) Plaintiff did not respond to the Court’s show cause order and

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Defendant Lopez was dismissed from this action on August 12, 2013. (ECF No. 122.)

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Two days after the dismissal of Defendant Lopez, Defendants Jordnt and Bardonnex filed a

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motion to modify the Discovery and Scheduling Order in order to complete Plaintiff’s deposition

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within thirty days and to file a dispositive motion within sixty days. (ECF No. 124.) Plaintiff did not

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file an opposition to the motion and did not file his own request to modify the Discovery and

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Scheduling Order to complete his discovery or to file a motion to compel. On September 13, 2013,

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the Court granted Defendants’ request to modify the Discovery and Scheduling Order. (ECF No.

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124.) Even after the Court granted the modification, Plaintiff did not file the instant request to modify

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the Discovery and Scheduling Order until nearly a month later. (ECF No. 129.) Plaintiff provides no

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explanation for the delay and has not demonstrated the requisite diligence.

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Insofar as Plaintiff requests the modification to allow the parties to obtain the discovery

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information that Federal Rule of Civil Procedure 26 requires the parties to disclose, his request lacks

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merit. As the Court previously informed Plaintiff, this action is exempt from the initial disclosures

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contemplated by Rule 26(a)(1). Fed. R. Civ. P. 26(a)(1)(B)(iv).

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III.

Conclusion and Order

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For the reasons stated, Plaintiff’s motion to modify the Discovery and Scheduling Order, filed

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on October 11, 2013, is DENIED.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

November 22, 2013

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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