Marti v. Padilla, et al

Filing 238

ORDER DENYING Plaintiff's Motion to Strike Deposition, and DENYING Plaintiff's Motion for Stay 210 ; ORDER for Defendants to Serve Plaintiff With Copy of Deposition Transcript Within Twenty Days 175 ; ORDER for Plaintiff to File Declaration Within Forty-Five Days, as Instructed By This Court; ORDER for Defendants to Notify Court Within Thirty Days if Settlement Conference Would Be Beneficial, signed by Magistrate Judge Gary S. Austin on 2/7/12. (Hellings, J)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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ALEX LAMOTA MARTI,

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Plaintiff,
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vs.

1:07-cv-00066-LJO-GSA-PC
ORDER DENYING PLAINTIFF’S MOTION
TO STRIKE DEPOSITION, AND DENYING
PLAINTIFF’S MOTION FOR STAY
(Doc. 210.)

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F. PADILLA, et al.,
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Defendants.

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ORDER FOR DEFENDANTS TO SERVE
PLAINTIFF WITH COPY OF DEPOSITION
TRANSCRIPT WITHIN TWENTY DAYS
(Doc. 175.)
ORDER FOR PLAINTIFF TO FILE
DECLARATION WITHIN FORTY-FIVE
DAYS, AS INSTRUCTED BY THIS ORDER

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ORDER FOR DEFENDANTS TO NOTIFY
COURT WITHIN THIRTY DAYS IF
SETTLEMENT CONFERENCE WOULD BE
BENEFICIAL

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____________________________/

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I.

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BACKGROUND
Alex Marti (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on January

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12, 2007. (Doc. 1.) This action now proceeds on the Amended Complaint filed by Plaintiff on

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July 9, 2007, against twenty-two defendants (“Defendants”), on Plaintiff’s claims for retaliation

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in violation of the First Amendment. (Doc. 20.)

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On July 29, 2010, Defendants filed a motion for summary judgment and lodged

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Plaintiff’s deposition transcript with the Court. (Docs. 173, 175.) On June 14, 2011, Plaintiff

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filed a motion to strike the deposition from the record. (Doc. 210.) On January 12, 2012,

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Defendants filed a response. (Doc. 235.) On January 25, 2012, Plaintiff filed a reply. (Doc.

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237.)

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Plaintiff’s motion to strike is now before the Court.
II.

MOTION TO STRIKE

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“The district court is given broad discretion in supervising the pretrial phase of

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litigation.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir.1992) (citation

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and internal quotation marks omitted). Plaintiff brings a motion to strike his deposition from

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the record, on the ground that Defendants failed to comply with Rule 30(e) of the Federal Rules

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of Civil Procedure, which provides:

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(1)

Review; Statement of Changes. On request by the deponent or a party before

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the deposition is completed, the deponent must be allowed 30 days after being

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notified by the officer that the transcript or recording is available in which:

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(A)

to review the transcript or recording; and

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(B)

if there are changes in form or substance, to sign a statement listing the

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changes and the reasons for making them.
(2)

Changes Indicated in the Officer’s Certificate. The officer must note in the

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certificate prescribed by Rule 30(f)(1) whether a review was requested and, if so,

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must attach any changes the deponent makes during the 30-day period.

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Plaintiff asserts that Defendants did not afford him the opportunity to review his

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deposition transcript for the purpose of noticing changes. Plaintiff claims that on November 9,

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2009, the date of the deposition, he made a request to Defendants’ counsel “to review the

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transcript for the purpose of noticing changes in form or substance and to sign a statement

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listing the changes and the reasons for making them.” (Motion, Doc. 210 at 2.) Plaintiff claims

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that he was never afforded the opportunity to review the transcript, nor given a copy of the

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transcript. Plaintiff asserts that he was only provided with selected pages of the transcript

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submitted by Defendants as evidence in support of their motion for summary judgment.

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In response, Defendants assert that they have no record of Plaintiff having made a

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timely request under Rule 30(e) to review the deposition transcript. Defendants propose that

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the Court enter an order directing that a copy of the transcript be provided for Plaintiff’s review,

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after which Plaintiff may provide a written statement identifying any requested changes to the

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transcript and his reasons for making them.

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Plaintiff rejects Defendants’ proposal. Plaintiff argues that his recollection of the

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deposition is not fresh, and he would be prejudiced by being forced to review the transcript at

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this late date. Plaintiff argues that the deposition should be stricken because Defendants failed

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to comply with Rule 30(e). Plaintiff proposes that after the deposition is stricken, the Court

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should impose a stay on this action, including Defendants’ motion for summary judgment, and

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initiate a settlement conference to enable the parties to dispose of this action.

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Discussion

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Plaintiff’s unverified assertions, that he made a request to Defendants’ counsel on

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November 9, 2009 to review his deposition transcript, and that Defendants failed to respond to

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his request, are not sufficient evidence to support his argument that Defendants failed to comply

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with Rule 30(e). Plaintiff offers only a conclusory statement that he made a request “to review

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the transcript for the purpose of noticing changes in form or substance and to sign a statement

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listing the changes and the reasons for making them.” (Motion, Doc. 210, at 2.) Defendants

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have no record of such a request by Plaintiff, and Plaintiff fails to offer any explanation why he

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waited more than two years to raise this objection. Moreover, Plaintiff has not made any

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indication that he objects to the selected deposition excerpts offered as evidence in support of

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Defendants’ pending motion for summary judgment. Based on these facts, the Court finds no

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good cause to strike the deposition from the record.

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Plaintiff shall be granted an opportunity to review the deposition transcript. Within

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twenty days, Defendants shall serve Plaintiff with a copy of the deposition transcript which was

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lodged on July 30, 2010. Within forty-five days of the date of service of this order, Plaintiff

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shall file a declaration signed under penalty of perjury, listing changes to the deposition and his

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reasons for the changes, or indicating that no changes are needed. In light of the fact that

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Plaintiff waited more than two years to bring this issue before the Court, with no evidence that

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he attempted to find resolution earlier with Defendants, the Court finds no prejudice to Plaintiff

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in requiring him to review the transcript at this late date.
With regard to Plaintiff’s request for a settlement conference,1 Defendants shall notify

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the Court within thirty days whether they believe, in good faith, that settlement in this case is a

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possibility and whether they are interested in having a settlement conference scheduled by the

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Court.2 With regard to Plaintiff’s request for a stay of this action, the Court finds no good cause

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to impose a stay at this stage of the proceedings.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion to strike his deposition from the record is DENIED;

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2.

Plaintiff’s motion to stay this action is DENIED;

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3.

Within twenty days of the date of service of this order, Defendants shall serve

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Plaintiff with a copy of the deposition transcript lodged on July 30, 2010, and

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Defendants shall file proof of service with the Court;

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Plaintiff requests settlement proceedings to resolve this action and to resolve another of Plaintiff’s pending
actions, case 1:08-cv-00653-AW I-SKO-PC; Marti v. Baires, et al. Plaintiff is advised that any request for settlement
proceedings to resolve his other action must be made by separate request filed in the other action.

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The parties may wish to discuss the issue by telephone in determining whether they believe settlement is

feasible.

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Within forty-five days of service of this order, Plaintiff shall file a declaration

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signed under penalty of perjury, listing changes to the deposition transcript and

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his reasons for the changes, or indicating that no changes are needed;

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Within thirty days of the date of service of this order, Defendants shall notify the

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Court in writing whether they believe, in good faith, that settlement in this case

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is a possibility and whether they are interested in having a settlement conference

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scheduled by the Court; and

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Extensions of time shall not be granted without a showing of good cause.

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IT IS SO ORDERED.
Dated:
6i0kij

February 7, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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