Consiglio v. Brown et al

Filing 70

ORDER Directing Plaintiff to File a Response to Defendants' Ex Parte Motion to Modify Rule 28 and Defendants' Amended Ex Parte Motion to Modify Rule 28 68 , 69 , signed by Magistrate Judge Stanley A. Boone on 3/26/2019: 21-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SAM CONSIGLIO, JR.,

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Plaintiff,
v.

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EDMUND G. BROWN, et al.,

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Defendants.

Case No. 1:16-cv-01268-AWI-SAB (PC)
ORDER DIRECTING PLAINTIFF TO FILE A
RESPONSE TO DEFENDANTS’ EX PARTE
MOTION TO MODIFY RULE 28 AND
DEFENDANTS’ AMENDED EX PARTE
MOTION TO MODIFY RULE 28
(ECF Nos. 68, 69)

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Plaintiff Sam Consiglio, Jr. is a civil detainee proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
On March 21, 2019, Defendants filed an ex parte motion to modify Rule 28 of the Federal

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Rules of Civil Procedure to permit the court reporter to attend Plaintiff’s deposition, which will

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occur via videoconferencing, outside of Plaintiff’s presence. (ECF No. 68.) In their motion,

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Defendants request that, since Department of State Hospitals, Coalinga (“DSH, Coalinga”) does

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not have the resources to provide staff to attend and ensure the safety of a court reporter during a

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deposition held on its grounds, the Court should issue an order modifying Rule 28 and permitting

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the court reporter to administer the oath, transcribe the testimony, and perform any other official

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duties during Plaintiff’s deposition from Defendants’ counsel’s office.

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On March 22, 2019, Defendants filed an amended ex parte motion to modify Rule 28 to
permit the court reporter to attend Plaintiff’s deposition, which will occur via videoconferencing,
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outside of Plaintiff’s presence. (ECF No. 69.) In the amended motion, Defendants request that,

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because DSH, Coalinga does not have the resources to provide staff to attend and ensure the

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safety of a court reporter during a deposition held on its grounds and the videoconferencing

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system used by DSH, Coalinga does not match or interface with the videoconferencing system

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used by Defendants’ counsel’s office, the Court should issue an order modifying Rule 28 and

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permitting the court reporter to administer the oath, transcribe the testimony, and perform any

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other official duties during Plaintiff’s deposition from the office of Esquire Deposition Solutions

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in Sacramento, California, with Defendants’ counsel also present in the same office of Esquire

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Deposition Solutions.

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However, the Local Rules of the Eastern District of California recognize limited situations

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in which ex parte applications may be filed: an initial extension of time where a stipulation cannot

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reasonably be obtained (L.R. 144(c)); applications to shorten time (L.R. 144(e)); injunctive relief

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(L.R. 231); receivers (L.R. 232); and default judgment (L.R. 540). Since Defendants’ ex parte

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motion to modify Rule 28 does not fall within one of these limited situations and Defendants’

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motions were served on Plaintiff, the Court declines to decide Defendants’ motions ex parte.

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Additionally, because no order shortening time was requested nor was the motion personally

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served on Plaintiff due to the nature of the request and relied sought, the Court further declines to

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decide the matter without an opportunity for the Plaintiff to be heard.

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Instead, the Court finds that it is appropriate to require Plaintiff to file a response to

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Defendants’ motions within twenty-one days from service of this order. No extensions will be

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granted after that date as the issue is quite limited. Further, if Plaintiff files an opposition to

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Defendants’ motions, Defendants may file a reply as permitted by Local Rule 230(l). The Court

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acknowledges that Plaintiff’s deposition is currently scheduled for April 2, 2019 and that the time

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allotted to Plaintiff to file a response to Defendants’ motions will not lapse until after that date.

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Therefore, the Court determines that the April 2, 2019 deposition of Plaintiff will not go forward

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unless Defendants’ counsel and the court reporter are physically present in the same location as

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Plaintiff at DSH, Coalinga at the time of the deposition. If the April 2, 2019 deposition of

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Plaintiff does not go forward, then the Court will re-set Plaintiff’s deposition after the Court rules
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on Defendants’ motion.

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Based on the foregoing, the Court HEREBY ORDERS that:

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1.

Plaintiff shall file a response to Defendants’ original and amended motions to

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modify Rule 28 of the Federal Rules of Civil Procedure within twenty-one (21)

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days from the date of service of this order;

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2.

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If Plaintiff files an opposition to Defendants’ Rule 28 motions, Defendants may
file a reply as permitted by Local Rule 230(l);

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3.

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Plaintiff’s April 2, 2019 deposition shall not forward unless Defendants’ counsel
and the court reporter are physically present in the same location as Plaintiff at

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DSH, Coalinga at the time of the deposition; and

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4.

If the noticed April 2, 2019 deposition does not go forward, the Court will re-set
Plaintiff’s deposition after the Court rules on Defendants’ Rule 28 motions.

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IT IS SO ORDERED.
Dated:

March 26, 2019
UNITED STATES MAGISTRATE JUDGE

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