Birrell v. Knauf et al

Filing 77

ORDER signed by Magistrate Judge Craig M. Kellison on 10/15/2012 ORDERING that defendants' 67 motion for a protective order is DENIED; plaintiff's 61 motion to compel is GRANTED; defendants shall serve responses to plaintiff's o utstanding discovery requests within 30 days; plaintiff's request for monetary sanctions is DENIED; plaintiff's 63 motion to appear telephonically or in person is DENIED as unnecessary; the parties may conduct discovery through 1/15/2013 ; within 90 days of the discovery cut-off date, defendants shall file either a notice of their intention to stand on their current 75 motion for summary judgment, or an amended motion; and plaintiff's opposition due within 30 days after service of defendants' notice to stand on the current motion or amended motion. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID WESLEY BIRRELL,
aka BELLA-CHRISTINA BIRRELL,

No. 2:10-CV-1707-GEB-CMK-P

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Plaintiff,
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vs.

ORDER

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KEITH HARLAN KNAUF, et al.,
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Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court are: (1) plaintiff’s motion to compel (Doc. 61)

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and opposition thereto (Doc. 65); (2) plaintiff’s motion to appear at hearings (Doc. 63);

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(3) defendants’ motion for a protective order (Doc. 67) and opposition thereto (Doc. 70); and

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(4) plaintiff’s motion for an extension of the discovery cut-off (Doc. 73) and response thereto

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(Doc. 74).

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In their motion for a protective order (Doc. 67), filed on May 4, 2012, defendants

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appear to seek an order either precluding plaintiff from serving additional discovery request or

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relieving them of any obligation to respond to discovery request already served by plaintiff. In

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particular, defendants refer to eight separate discovery requests served by plaintiff between July

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7, 2011, and December 7, 2011. Defendants’ motion is untimely. Pursuant to the court’s

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scheduling orders, responses to written discovery are due within 45 days after the request is

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served. Responses must be timely served unless a different deadline is set by stipulation or the

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court. See e.g. Fed. R. Civ. P. 33(b)(2). A party may be relieved of the obligation to respond by

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obtaining a protective order. But, because a timely response is mandatory absent a stipulation or

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court order, it follows that a motion for a protective order must be filed before discovery

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responses are due.

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In his motion to compel (Doc. 61), plaintiff argues that defendants have

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completely failed to respond to the eight discovery requests which are the subject of defendants’

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motion for a protective order. In their opposition, defendants argue generally that some of the

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requests are subject to privilege and other objections. Nowhere do defendants challenge

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plaintiff’s statement that defendants failed to serve responses. And, given defendants’ untimely

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motion for a protective order, discussed above, it is clear that defendants did not respond.

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Because defendants did not obtain a protective order prior to the due date for discovery

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responses, plaintiff’s motion to compel will be granted and defendants will be ordered to respond

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to the outstanding discovery requests referenced in the parties’ motions. To the extent objections

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are deemed waived or admissions admitted due to untimely responses, defendants may file an

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appropriate motion for relief. As to plaintiff’s request for monetary sanctions, that request will

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be denied under Federal Rule of Civil Procedure 37(a)(5)(A)(ii).

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In his motion for an extension of the discovery cut-off (Doc. 73), plaintiff seeks

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additional time to conduct discovery in light of responses to outstanding discovery he anticipates

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the court will order. Defendants do not oppose the request to extend discovery. Good cause

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appearing therefor, the request will be granted. The parties will be permitted to conduct

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additional discovery, consistent with the court’s prior scheduling orders, through January 15,

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2013. At the expiration of discovery, defendants may either stand on their current motion for

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summary judgment or file an amended motion for summary judgment. Plaintiff will be relieved

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of any obligation to respond to defendants’ motion for summary judgment until they make an

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election to either stand on the original motion or file an amended motion.

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Finally, plaintiff seeks an order permitting him to appear by telephone or be

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brought to court for hearings. Because plaintiff is incarcerated, motions in this case are decided

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on the papers without oral argument. See Local Rule 230(m). Therefore, plaintiff’s motion will

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be denied as unnecessary.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Defendants’ motion for a protective order (Doc. 67) is denied;

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2.

Plaintiff’s motion to compel (Doc. 61) is granted;

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3.

Defendants shall serve responses to plaintiff’s outstanding discovery

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requests within 30 days of the date of this order;

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Plaintiff’s request for monetary sanctions is denied;

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Plaintiff’s motion to appear telephonically or in person (Doc. 63) is denied

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as unnecessary;

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6.

The parties may conduct discovery through January 15, 2013;

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Within 90 days of the January 15, 2013, discovery cut-off date, defendants

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shall file either a notice of their intention to stand on their current motion for summary judgment,

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or an amended motion for summary judgment; and

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Plaintiff’s opposition to defendants’ motion for summary judgment shall

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be due within 30 days after defendants’ service their notice to either stand on the current motion

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for summary judgment or their amended motion for summary judgment.

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DATED: October 15, 2012
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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