Baldhosky v. Hubbard et al

Filing 79

ORDER denying 74 Motion for Extension of Time signed by Magistrate Judge Michael J. Seng on 4/4/2017. (Response to Complaint due within 7-Days). (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAYMOND BALDHOSKY ,

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Plaintiff,

CASE NO. 1:12-cv-01200-LJO-MJS (PC)
ORDER DENYING MOTION FOR
EXTENSION OF TIME

v.
(ECF NO. 74)
SUSAN HUBBARD, et al.,
Defendants.

RESPONSE TO COMPLAINT DUE
WITHIN SEVEN DAYS

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Plaintiff is a former state prisoner proceeding pro se in this civil rights action

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brought pursuant to 42 U.S.C. § 1983. On May 4, 2016, the Court screened Plaintiff’s

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third amended complaint and found that it stated cognizable claims against ten

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defendants: Dr. Gonzalez, Dr. Nguyen, Dr. Metts, Physician’s Assistant L. Peters,

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Physician’s Assistant T. Byers, Nurse T. Grossi, Nurse Ruff, Nurse Dunn, Nurse

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Indindes, and Nurse Amanda Kaylor. (ECF No. 31.)

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Before the Court is Defendants Byers, Grossi, and Peters’ motion for an extension

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of time to respond to the complaint. (ECF No. 74.) Defense counsel states she has

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spoken with Plaintiff and he does not oppose the motion.

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I.

Procedural History

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Defendants Gonzalez, Metts, and Kaylor waived service and filed a motion to

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dismiss. Duc Nguyen was served on behalf of Defendant Nguyen, but service on Mr.

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Nguyen was quashed. (ECF No. 60.) Summons for Defendants Indindes, Ruff, and Dunn

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were returned unexecuted. (ECF Nos. 45, 46, 67.) Waivers sent to Defendants Byers,

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Grossi, and Peters were not immediately returned and, for reasons that are presently

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unclear, the United States Marshals Service apparently did not attempt personal service

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on these Defendants. (ECF No. 56.)

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The Court has held two status conferences to attempt to resolve service issues.

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(ECF Nos. 64, 66.) In the latest of these, on January 12, 2017, counsel for Defendants

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Gonzalez, Metts, and Kaylor represented that Defendants Byers, Grossi, and Peters had

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received service packets and were expected to seek representation from the Office of

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the Attorney General. Shortly thereafter, counsel for Defendants Gonzalez, Metts, and

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Kaylor represented to Court staff that the service packets had been received by the

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Office of the Attorney General. However, as of February 6, 2017, no waivers from these

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Defendants were filed and no appearance was made on their behalf. Accordingly, on

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that date, the Court granted Plaintiff’s oral motion for subpoena duces tecum and issued

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a subpoena directing the California Department of Corrections and Rehabilitation

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(“CDCR”) to provide Plaintiff with certain documents regarding these and other unserved

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Defendants.

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CDCR was served with the subpoena on March 1, 2017. (ECF No. 73.) On March

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16, 2017, Defendants Byers, Grossi, and Peters filed the instant motion for extension of

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time. (ECF No. 74.) On March 23, 2017, CDCR moved to quash the subpoena as to

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Byers, Grossi, and Peters on the ground that “waivers have been returned as to Byers,

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Peters, and Grossi,” even though no such waivers had been filed with the Court. (ECF

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No. 75.) On March 30, 2017, executed service waivers for Byers, Grossi, and Peters

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were filed. (ECF No. 78.)

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II.

Discussion

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In her motion for extension of time, counsel for Defendants Byers, Grossi, and

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Peters asks the Court to extend their deadline to respond to the third amended

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complaint pending resolution of the motion to dismiss by Defendants Gonzalez, Kaylor,

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and Metts.1 Counsel states that an extension is necessary to “avoid burdening the Court

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with duplicative filings, and to determine the nature of their response depending upon

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the outcome of that Order.” Although counsel states in her declaration that Defendants

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Byers, Grossi, and Peters “were provided with the Third Amended Complaint and

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waivers of service by the U.S. Marshal,” notably absent from the declaration is any

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reference to when the waivers were provided to Defendants or when their response was

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due.

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The waivers recently filed with the Court reflect that they were mailed on

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September 13, 2016. (ECF No. 78.) Pursuant to Federal Rule of Civil Procedure

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12(a)(1)(A)(ii), Defendants’ response was due sixty days later, or November 14, 2016.

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Defendants are now significantly in default. Indeed, counsel’s filing of the instant motion

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simultaneous with the belated return of the waivers could be construed as an effort to

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avoid entry of default.

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The Court has reviewed counsel’s declaration and finds that it presents no cause,

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let alone good cause, that would explain this delay. Of particular note, the service

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packets reportedly were delivered to the Office of the Attorney General in January 2017,

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yet no explanation is given for the Attorney General’s failure to promptly return the

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waivers or file a responsive pleading. Indeed, there is nothing in the record before the

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Court that would suggest anything other than purposeful delay on the part of the Office

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of the Attorney General. Such unexcused delay does not provide a basis for granting an

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extension of time.

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The motion to dismiss presently is pending on Findings and Recommendations to the District Judge.
(ECF No. 65.)

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Furthermore, Defendants’ claim that they wish to “avoid burdening the Court”

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rings hollow. As stated, the Court has held two status conferences attempting to resolve

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service issues regarding these Defendants, has authorized a subpoena for CDCR

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records, and has pending before it CDCR’s motion to quash that subpoena. Significant

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judicial and public resources have been expended, and continue to be expended, in

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attempting to resolve an issued caused by the purposeful or neglectful conduct of the

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parties and their counsel.

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In light of the circumstances presented above, Defendants’ request to delay their

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filing for thirty days following the ruling on the motion to dismiss, while bold, is

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unsupportable. Accordingly, they will be granted seven days from the date of this order

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in which to respond to the complaint. Absent a showing of extraordinary, presently

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unforeseeable, circumstances beyond the control of counsel and the parties, no

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further extensions of time will be granted. Indeed, requests that are not so

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supported will subject the requesting party to sanctions.

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Based on the foregoing, it is HEREBY ORDERED that:

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1. Defendants’ motion for extension of time is DENIED;

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2. Defendants Grossi, Peters, and Byers shall respond to the complaint

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within seven days of the date of this order.

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IT IS SO ORDERED.
Dated:

April 4, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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