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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID FLYNN,

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Case No. 1:16-cv-01052-AWI-BAM (PC)
Plaintiff,

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v.

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ORDER DENYING PLAINTIFF’S MOTION
TO STRIKE DEPOSITION

CANLAS, et al.,

(ECF No. 47)

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Defendants.

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Plaintiff David Flynn (“Plaintiff”) is a former state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff was a prisoner at

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the time this action was initiated. This action proceeds against Defendant Maddox for deliberate

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indifference to serious medical needs in violation of the Eighth Amendment.

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On August 23, 2018, Plaintiff filed a motion for a Court order striking his deposition

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testimony from the record on the ground that Defendant violated California Civil Code of

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Procedure § 2025.270(a), by serving the deposition notice less than ten days prior to the

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scheduled deposition. (ECF No. 47.) Defendant filed an opposition on August 24, 2018. (ECF

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No. 48.) The deadline for Plaintiff’s reply has expired, and the motion is deemed submitted.

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Local Rule 230(l).

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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
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litigated in California Superior Court, whereas the instant action has been filed in United States

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District Court. Therefore, the Federal Rules of Civil Procedure apply.

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Defendant provided Plaintiff with “reasonable written notice” of the scheduling of the

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deposition, as required by Federal Rule of Civil Procedure 30(b)(1). Plaintiff received defense

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counsel’s communication via email and actively participating in the selection of the date and

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location of the deposition. Plaintiff was able to attend and participate in the deposition, and never

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objected to the timing or notice of the deposition as unreasonable.

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Accordingly, Plaintiff’s motion to strike his deposition from the record, (ECF No. 47), is
HEREBY DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 12, 2018

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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