Smith et al v. Schwarzenegger et al

Filing 120

ORDER GRANTING Defendants Request for an Extension of Time to File a Responsive Pleading and DENYING Plaintiffs' Order Request for Discovery. Responsive Pleading Due January 30, 2015. Motion Hearing set for 3/27/2015 at 01:30 PM in Courtroom 9 (SAB) before Magistrate Judge Stanley A. Boone, signed by Magistrate Judge Stanley A. Boone on 12/5/2014. (Kusamura, W)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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COREY LAMAR SMITH, et al.,

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Plaintiffs,
v.
ARNOLD SCHWARZENEGGER, et al.,
Defendants.

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Case No. 1:14-cv-00060-LJO-SAB
ORDER GRANTING DEFENDANTS REQUEST
FOR AN EXTENSION OF TIME TO FILE A
RESPONSIVE PLEADING AND DENYING
PLAINTIFFS’ ORAL REQUEST FOR
DISCOVERY
(ECF Nos. 117, 118)
RESPONSIVE PLEADING DUE JANUARY 30,
2015

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On December 4, 2014, Defendants Beard, Brazelton, Cate, Hartley, Hubbard, Hysen,

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Kernan, Meyer, Rothchild, Schwartz, Schwarzenegger, and Yates filed a motion for an extension

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of time to file a responsive pleading. Defendants Igbinoza and Winslow joined in the motion for

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an extention of time on December 5, 2014.

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On December 5, 2014, an informal telephonic conference was held in this action.

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Following the informal telephonic conference, a hearing was held on Defendants’ motion for an

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extension of time to file a responsive pleading. Counsel Matthew B. Pavone, David Elliot, Mark

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Ozello, and Gregg Zucker appeared for Plaintiffs; counsel Jon S. Allin, Michelle L. Angus, and

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Christine Ciccotti appeared for Defendants Beard, Brazelton, Cate, Hartley, Hubbard, Hysen,

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Kernan, Meyer, Rothchild, Schwartz, Schwarzenegger, and Yates; and counsel Susan Coleman

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appeared for Defendants Igbinoza and Winslow.
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Defendants request an extension of time to file a responsive pleading because Plaintiffs’

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consolidated complaint is 276 pages with 159 Plaintiffs and adds 33 new Plaintiffs and 2 new

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Defendants. In requesting the extension of time, counsel has considered scheduled vacation time

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and office closures due to the holidays. The Court finds good cause to grant the extension of time

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and Defendants responsive pleading shall be due by January 30, 2015. Defendants have indicated

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that their responsive pleading will be a motion to dismiss and a briefing schedule for any motion

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brought as a responsive pleading shall be set as agreed to by the parties.

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Plaintiffs also brought an oral motion for a limited opening of discovery prior to a

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responsive pleading being filed in this action. The Court has previously considered Plaintiffs’

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request to order discovery in this action, and in response ordered the parties to develop a

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coordinated discovery plan. (ECF No. 56.) Plaintiffs argue that Rule 26 of the Federal Rules of

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Civil Procedure provides the authority to conduct discovery at this stage of the litigation. Rule

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26(f) states “[e]xcept in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or

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when the court orders otherwise, the parties must confer as soon as practicable--and in any event

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at least 21 days before a scheduling conference is to be held or a scheduling order is due under

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Rule 16(b).”

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conference unless a different time is set by stipulation or order of the court. Fed. R. Civ. P.

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26(a)(1)(C).

Initial disclosures must be made within fourteen days after the Rule 26(f)

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In this instance an order issued stating that “[n]o discovery may be initiated until the Court

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issues a discovery order or otherwise orders that discovery begin.” (ECF No. 4.) Further, the

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obligation to meet and confer does not initiate discovery. Once the parties and the claims to be

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litigated in this action are determined and the Defendants file an answer, the Court will hold a

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Rule 26(f) conference and an order shall issue opening discovery.

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While Plaintiffs argue that they will suffer prejudice if discovery does not commence, the

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Court finds that Plaintiff’s have failed to show any prejudice due to the current status of the

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discovery in this case. Defendants are assisting in obtaining properly requested copies of the

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individual Plaintiffs’ C-files. Plaintiff’s argue that those individuals who have been released from

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custody are in need of medical care, however this goes to the merits of the claim and not to
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prejudice due to the status of discovery in this action.
Further, Plaintiffs argue that some of the defendants in this action have retired and there is
“Litigants owe an

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concern that information on their computers may be purged and lost.

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uncompromising duty to preserve what they know or reasonably should know will be relevant

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evidence in a pending lawsuit, or one in the offing . . . .” JUDGE WILLIAM W. SCHWARZER

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ET AL., FEDERAL CIVIL PROCEDURE BEFORE TRIAL § 11:125 (2004) (internal quotations

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and citations omitted); see also Leon v. Sys. Corp., 464 F.3d 951, 959 (9th Cir. 2006). This

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obligation, backed by the court’s power to impose sanctions for the destruction of such evidence,

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Chambers v. Nasco, Inc., 501 U.S. 32, 43-46 (1991), is sufficient in most cases to secure the

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preservation of relevant evidence. Plaintiffs have not provided any facts by which this Court

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could find that relevant evidence is likely to be lost or destroyed prior to the defendants filing an

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answer in this action.

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Finally, Plaintiff’s request limited discovery yet have provided no facts regarding what

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limited discovery is being sought. The Court notes that discovery has previously been granted in

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this action when facts were presented showing the need to obtain the discovery prior to an answer

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being filed.

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deposition of Plaintiff Baker due to health issues). For these reasons, Plaintiffs’ oral motion for

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discovery shall be denied without prejudice on a noticed motion.

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiffs’ oral motion for discovery is DENIED;

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2.

Defendants’ motion for an extension of time to file a responsive pleading is

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See Order Vacating Initial Scheduling Conference, ECF No. 95 (allowing the

GRANTED;

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3.

Defendants shall file a responsive pleading on or before January 30, 2015;

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4.

Plaintiffs’ opposition to the responsive pleading shall be filed on or before March

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6, 2015;
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Defendants reply shall be filed on or before March 20, 2015; and

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A hearing on any motions brought in the responsive pleading shall be held before
the undersigned on March 27, 2015 at 1:30 p.m. in Courtroom 9.

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IT IS SO ORDERED.
Dated:

December 5, 2014
UNITED STATES MAGISTRATE JUDGE

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