Flynn v. Canlas, et al.

Filing 51

ORDER DENYING Plaintiff's 47 Motion to Strike Deposition signed by Magistrate Judge Barbara A. McAuliffe on 9/12/2018. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID FLYNN, 12 Case No. 1:16-cv-01052-AWI-BAM (PC) Plaintiff, 13 v. 14 ORDER DENYING PLAINTIFF’S MOTION TO STRIKE DEPOSITION CANLAS, et al., (ECF No. 47) 15 Defendants. 16 17 Plaintiff David Flynn (“Plaintiff”) is a former state prisoner proceeding pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff was a prisoner at 19 the time this action was initiated. This action proceeds against Defendant Maddox for deliberate 20 indifference to serious medical needs in violation of the Eighth Amendment. 21 On August 23, 2018, Plaintiff filed a motion for a Court order striking his deposition 22 testimony from the record on the ground that Defendant violated California Civil Code of 23 Procedure § 2025.270(a), by serving the deposition notice less than ten days prior to the 24 scheduled deposition. (ECF No. 47.) Defendant filed an opposition on August 24, 2018. (ECF 25 No. 48.) The deadline for Plaintiff’s reply has expired, and the motion is deemed submitted. 26 Local Rule 230(l). 27 28 As Defendant argued in opposition to Plaintiff’s motion, California Code of Civil Procedure is inapplicable to this action. The California Code of Civil Procedure governs suits 1 1 litigated in California Superior Court, whereas the instant action has been filed in United States 2 District Court. Therefore, the Federal Rules of Civil Procedure apply. 3 Defendant provided Plaintiff with “reasonable written notice” of the scheduling of the 4 deposition, as required by Federal Rule of Civil Procedure 30(b)(1). Plaintiff received defense 5 counsel’s communication via email and actively participating in the selection of the date and 6 location of the deposition. Plaintiff was able to attend and participate in the deposition, and never 7 objected to the timing or notice of the deposition as unreasonable. 8 9 Accordingly, Plaintiff’s motion to strike his deposition from the record, (ECF No. 47), is HEREBY DENIED. 10 11 12 IT IS SO ORDERED. Dated: /s/ Barbara September 12, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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