Dannie Berchtold v. City of Angels et al

Filing 26

ORDER Re: Late-Filed Reply Brief 25 , signed by Magistrate Judge Erica P. Grosjean on 3/31/17: To the extent Plaintiff's declaration constitutes a request for reconsideration of the Court's order on the motion to compel, that request is DENIED. (Hellings, J)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

DANNIE BERCHTOLD,

12

Plaintiff,

13
14
15

vs.

Case No. 1:16-cv-00397-DAD-EPG
ORDER RE: LATE-FILED REPLY BRIEF
(ECF No. 25)

CITY OF ANGELS aka ANGELS
CAMP, et al.,
Defendants.

16
17
18
19
20
21
22
23
24
25
26

On March 21, 2017, Plaintiff filed a motion to compel discovery requests. (ECF No.
21.) That motion was denied on March 28, 2017. (ECF No. 24.) On March 29, 2017, Plaintiff
filed a declaration in reply to Defendants’ opposition brief. (ECF No. 25.) The declaration
explains that Plaintiff originally served discovery requests on Defendants in October 2016 and
called Defendants to meet and confer regarding those requests in January 2017. Defense
counsel was in trial when Plaintiff called, however, and his legal assistant asked Plaintiff to
send any meet and confer communications in writing. Plaintiff did not write to Defendants
about the discovery requests. On March 7, 2017, Plaintiff served a new set of requests for
document production on Defendants.1 Plaintiff also asks in the declaration to disregard two of

27
28

1

Plaintiff filed the March 7, 2017 email and document requests as attachments to the original motion to compel.

1

1
2

the requests for production he served on March 7, 2017 “[i]n order to simplify matters.”
Plaintiff’s reply does not alter the outcome of the Court’s decision on the motion to

3

compel. First, the declaration was untimely and thus need not be considered. Smith v. Abdur-

4

Rahman, Case No. 2:13-cv-0738-KJN-P, 2015 WL 164436, at *1 (E.D. Cal. Jan. 13, 2015)

5

(“Because the reply was untimely filed, the undersigned has not considered the reply.”);

6

Morgal v. Maricopa Cnty. Bd. of Sup’rs, 284 F.R.D. 452, 457 (D. Ariz. 2012) (“Because the

7

plaintiff’s reply was untimely, it was not clear error for the Magistrate Judge not to consider

8

that reply.”). The Court expressly informed the parties that the motion to compel would be

9

taken under submission on March 24, 2017. (ECF No. 20.) Nor did the Court grant either party

10

leave to file supplemental or late briefing. Smith v. Frank, 923 F.2d 139, 141 (9th Cir. 1991)

11

(“The consensus is that ‘[p]apers and pleadings . . . are considered filed when they are placed

12

in the possession of the clerk of the court.’”).

13

Second, the declaration does not alter any of the facts considered in the Court’s order. It

14

does not demonstrate that Plaintiff engaged in any meaningful meet and confer

15

communications with Defendants—indeed, it shows that Plaintiff had an explicit avenue of

16

communication provided to him for any meet and confer communications but chose to ignore

17

it. Nor does it show that Plaintiff attempted to meet and confer after the Court ordered him to

18

do so on March 1, 2017. To the extent Plaintiff’s declaration constitutes a request for

19

reconsideration of the Court’s order on the motion to compel, that request is DENIED.

20
21
22

IT IS SO ORDERED.
Dated:

March 31, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

23
24
25
26
27
28
2