Garcia v. Mix et al

Filing 113

ORDER DENYING Plaintiff's Motion for Subpoena Duces Tecum 110 , signed by Magistrate Judge Barbara A. McAuliffe on 1/14/15. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUILLERMO GARCIA,

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Plaintiff,
v.
M. MIX, et al.,

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Defendants.

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Case No.: 1:10-cv-02097-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION FOR
SUBPOENA DUCES TECUM
(ECF No. 110)

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I.

Procedural Background

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Plaintiff Guillermo Garcia (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s

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second amended complaint against Defendants Saylor and McCue for denial of access to the court.

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On January 10, 2013, the Court issued a Discovery and Scheduling Order, which set the
deadline to complete discovery as September 10, 2013. (ECF No. 46.)

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On September 12, 2013, Plaintiff filed a motion to compel Defendants’ answers to request for

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admissions, interrogatories and request for production of documents. (ECF No. 54.) On October 24,

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2013, the Court denied Plaintiff’s motion to compel without prejudice because Plaintiff’s discovery

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requests were untimely. However, the Court granted Plaintiff leave to file a motion to amend the

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Discovery and Scheduling Order to extend the discovery cut-off date. (ECF No. 60.)
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On January 2, 2014, Plaintiff filed a motion to modify the Discovery and Scheduling Order to

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extend the discovery deadline. (ECF No. 73.) On April 9, 2014, the Court partially granted Plaintiff’s

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request and extended the discovery deadline an additional fifty days to permit Plaintiff to obtain

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responses to requests for admissions and interrogatories from Defendant McCue and to file any

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necessary motion to compel. (ECF No. 84.)

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On May 21, 2014, Plaintiff filed a motion to compel further responses to his requests for

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admissions and interrogatories from Defendant McCue. (ECF No. 85.) Defendants opposed the

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motion on June 9, 2014, and Plaintiff replied on August 19, 2014. (ECF Nos. 94, 100.) On October

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27, 2014, the Court denied Plaintiff’s motion to compel further discovery responses. (ECF No. 106.)

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On November 21, 2014, Plaintiff filed a petition for writ of mandamus to the Ninth Circuit Court of

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Appeals regarding the Court’s denial of his motion to compel. (ECF No. 108.)
On December 15, 2014, Plaintiff filed letters and a subpoena, which appear to seek documents

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from CourtCall Remote Court Appearances regarding a court call on August 22, 2008. (ECF No.

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110.) The Court construes Plaintiff’s filing as a motion for subpoena duces tecum to obtain certain

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documents. Defendants did not file an opposition and the motion is deemed submitted. Local Rule

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230(l).

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II.

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Pursuant to the Discovery and Scheduling Order issued in this action, the deadline for Plaintiff

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to complete all discovery, with the exception of interrogatories and requests for admissions directed to

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Defendant McCue, expired on September 10, 2013. Plaintiff now seeks third-party discovery after the

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expiration of the discovery deadline set forth in the scheduling order.

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Motion for Subpoeanas Duces Tecum

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

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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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Plaintiff has not demonstrated diligence in seeking to obtain a third-party subpoena.

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According to the record in this matter, Plaintiff made no attempt to obtain a subpoena until December

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2014, which is more than one year after the close of discovery. Plaintiff has not explained the delay

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and has not established good cause to modify the scheduling order. Accordingly, Plaintiff’s request

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for a subpoena duces tecum is untimely and shall be denied.

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III.

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For the reasons stated, Plaintiff’s request for a subpoena duces tecum is DENIED.

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Conclusion and Order

IT IS SO ORDERED.
Dated:

/s/ Barbara

January 14, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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