McCain v. California Highway Patrol et al

Filing 172

ORDER signed by Magistrate Judge Allison Claire on 11/1/13 GRANTING the 170 Ex Parte Application; Discovery in this action is STAYED pending Judge Mueller's ruling on the Order to Show Cause. (Manzer, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TERRYLYN McCAIN,

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No. 2:11-cv-1265 KJM AC PS

Plaintiff,
v.

ORDER

CALIFORNIA HIGHWAY PATROL, ET
AL.,
Defendants.

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Pending before the court is defendants Mike’s Towing Service and Michael Olivarez’s

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(“the Towing defendants”) ex parte application for Order to Set Discovery Priority Including

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Deposition Stay. ECF No. 170. This matter concerns plaintiff’s depositions notices sent to the

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Towing defendants, directing them to appear for depositions on November 4, 2013. California

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Highway Patrol (“CHP”) officers Mangham, Pini and Walling (“the CHP defendants”) have filed

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a partial opposition to the ex parte application. Plaintiff has not filed a response.

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This action, which was filed on May 11, 2011, is proceeding against the CHP and Towing

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defendants based on an allegedly unlawful vehicle stop and towing of plaintiff’s car on March 14,

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2011. On January 3, 2013, the defendants moved for terminating sanctions in light of plaintiff’s

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discovery abuses. ECF No. 146. Plaintiff did not file an opposition to the motion and did not

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appear at the hearing. Accordingly, on January 25, 2013, the undersigned issued findings and
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recommendations recommending that the motion be granted and this action dismissed with

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prejudice. ECF No. 152.

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Following the issuance of the findings and recommendations, the Towing defendants filed

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a notice of plaintiff’s involuntary commitment in a pending criminal action, United States v.

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McCain, 2:12-cr-0144 MCE. ECF No. 153. The Towing defendants then moved for a temporary

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stay of the recommendation to dismiss. ECF No. 154. On February 12, 2013, the undersigned

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vacated the January 25, 2013 findings and recommendations and recommending that the motion

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for temporary stay be granted. ECF No. 156. On March 21, 2013, the Honorable Kimberly J.

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Mueller adopted the findings and recommendations, vacated all dates in this matter, stayed this

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case, and directed plaintiff to submit a status report within fourteen days of her release from

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commitment. ECF No. 159.

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On May 2, 2013, Judge Mueller lifted the stay on notice that plaintiff was released from

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confinement on March 14, 2013. See ECF No. 163; United States v. McCain, 2:12-cr-0144 TLN,

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ECF No. 158. Judge Mueller also issued an order to show cause why this case should not be

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dismissed in light of plaintiff’s failure to prosecute and her failure to comply with Judge

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Mueller’s March 21, 2013 order. Although plaintiff filed a “Case Management Status Report” on

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May 9, 2013, the order to show cause has not yet been ruled on or vacated.

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Meanwhile, it appears the parties have attempted to continue with their discovery

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obligations. See Cranmore Decl. ¶ 10, Exs. A-B. The Towing defendants, for example, sought

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responses to their previously-propounded discovery requests, see id., Ex. A, and plaintiff served

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on the various defendants deposition notices, id., Ex. D.

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The Towing defendants now move for an order staying the depositions set for Monday,

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November 4, 2013, on the grounds that (1) Judge Mueller’s March 21, 2013 order vacating dates

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serves as a discovery stay, (2) the status of this case is unclear in light of Judge Mueller’s order to

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show cause, and (3) plaintiff may not obtain discovery from defendants until she had adequately

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responded to their discovery requests.

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Turning to the last argument first, Federal Rule of Civil Procedure 26(d) states that, unless

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ordered otherwise, the “methods of discovery may be used in any sequence; and discovery by one
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party does not require any other party to delay its discovery.” The Advisory Committee notes

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following the text of this rule make clear that this provision was meant to “eliminate any fixed

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priority in the sequence of discovery,” and that the priority rule adopted by some courts which

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confirms priority on the party who first serves notice of taking a deposition is unsatisfactory. See

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Fed. R. Civ. P. 26(d) advisory committee notes. Nonetheless, the advisory committee notes also

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grant courts discretion in asserting a priority as dictated by “special considerations.” See id.

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The court finds that special considerations exist in this case, as set forth more fully in the

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undersigned’s January 25, 2013 findings and recommendations regarding plaintiff’s failure to

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participate in discovery. While the court does not find that Judge Mueller’s order vacating dates

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serves as a discovery stay, the court is aware that Judge Mueller’s ruling on the order to show

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cause may dispose of this case.

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The CHP defendants’ position is that the ex parte application is premature because this

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action is in abeyance until Judge Mueller rules on the order to show cause. To avoid confusion

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caused by the Towing defendants’ attempt to also obtain discovery during this interim period, the

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CHP defendants seek a discovery stay pending resolution of the order to show cause.

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Good cause appearing, IT IS HEREBY ORDERED that:

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1. The Towing defendants’ ex parte application is granted;

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2. Discovery in this action is stayed pending Judge Mueller’s ruling on the order to show

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cause. Should Judge Mueller issue an order short of dismissal, the undersigned will

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set a status conference to discuss the future scheduling of this case.

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DATED: November 1, 2013

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