Foy v. Vallejo Police Department

Filing 78

ORDER signed by Magistrate Judge Craig M. Kellison on 9/29/2014 DENYING plaintiff's 56 motion for an extension of time; DENYING as untimely plaintiff's 57 motion to compel; and DENYING as unnecessary defendants' 62 motion for protective order. (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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ALFRED JAMES FOY,

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Plaintiff,

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No. 2:11-cv-3262-MCE-CMK-P

vs.

ORDER

VALLEJO POLICE DEPARTMENT,
Defendant.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. Pending before the court is plaintiff’s motion for extension of time (Doc. 56),

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plaintiff’s motion to compel (Doc. 57) and defendants’ motion for protective order (Doc. 62).

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Plaintiff’s Motion for Extension of Time

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Plaintiff first filed a motion requesting additional time in which to file his motion

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to compel. The court previously modified the scheduling order to allow the parties to engage in

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additional discovery. As set forth in the court’s prior order, any motion to compel was to be filed

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within 15 days after the response to the propounded discovery was due. Plaintiff’s request is for

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an additional 15 days. Plaintiff requests the additional time in order for his non-attorney

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assistant, Frederick Cooley, to have sufficient time to properly prepare the motion. Defendants
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oppose the motion on the grounds that no good cause has been shown.

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Pursuant to the court’s prior order, the parties were allowed to propound

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additional discovery for 60 days, or until November 29, 2013. Plaintiff propounded his requests

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on November 12, 2013. Answers to these newly propounded discovery were then due 45 days

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later, or December 27, 2013. Any necessary motions to compel were then to be filed within 15

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days of the response deadline, or by January 13, 2014 (given the weekend deadline). Plaintiff

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filed his motion to an extension of time on January 10, 2014.
The undersigned notes that the defendants’ responses were served1 on plaintiff

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December 20, 2013, seven days prior to the deadline, providing plaintiff with 22 days to respond,

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instead of the original 15 as contemplated by the court. Regardless, plaintiff states he then

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requested Mr. Cooley’s assistance in preparing a motion to compel, and that he met with Mr.

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Cooley on January 6, 2014, who indicated the need for additional time. Other then stating Mr.

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Cooley was not able to prepare the motion within the time the court provided, plaintiff provides

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no reason for the court to grant the motion.

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Mr. Cooley also submitted a declaration in support of plaintiff’s motion. In his

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declaration, Mr. Cooley simply states he was incapable of properly preparing the motion within

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the time the court provided. In addition, Mr. Cooley states his assumption that the Court has no

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reason to discontinue his assistance to plaintiff.

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Rule 6(b) of the Federal Rules of Civil Procedure provides that upon good cause,

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the court may extend the a deadline. Good cause generally means a substantial reason. Here,

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plaintiff provides no reason for the court to evaluate to determine if good cause exists. He

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simply states he does not know how to properly prepare a motion to compel, and the individual

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he asked assistance of needed more time than was provided. The undersigned does not see a

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reason set forth in this apparent explanation. While the court understands that plaintiff is

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Although plaintiff states that he did not actually receive the responses until
December 30, 2013, due to the holidays.
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proceeding in pro per, that does not excuse the necessity of providing good cause for his request.

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Relying on Mr. Cooley, who is not an attorney and is not representing plaintiff, is not in itself

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good cause for the court to provide additional time to do as was ordered. Plaintiff was aware that

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he would have 15 days from the date the responses were due to file this motion. He had

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previously requested almost the same documents, and received essentially the same objections

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from the defendants as to his current request, as he did with his prior discovery requests. He was

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therefore on notice that the defendants would object to the documents requested. He could have

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taken advantage of the 45 days the defendants had to respond to his discovery requests, and

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familiarized himself with the proper procedure for filing a motion to compel. His failure to do

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so, or to request additional time prior to the deadline for filing his motion, is insufficient reason

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to grant his belated request.

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As far as Mr. Cooley’s assumption that the court has no legal reason to object to

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his assisting plaintiff, that issue is not directly before the court. Mr. Cooley, who is not an

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attorney, cannot legally represent plaintiff in this action. See Johns v. County of San Diego, 114

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F.3d 874, 876–877 (9th Cir.1997) (explaining that a non-attorney may appear pro se on his own

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behalf but has no authority to appear as an attorney for others). That means that Mr. Cooley

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cannot sign any documents on behalf off plaintiff, cannot speak for plaintiff, and cannot appear

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before the court on plaintiff’s behalf. Indeed, as a non-attorney, Mr. Cooley cannot legally

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provide legal advice to plaintiff. However, thus far, plaintiff has signed all of the documents that

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have been filed with the court, so the court has had no reason to censure plaintiff.

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Accordingly, the undersigned finds no good cause to extend the deadline to file
the motion to compel. Plaintiff’s motion (Doc. 56) is therefore denied.

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Plaintiff’s Motion to Compel

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Plaintiff brings this motion to compel in an attempt to obtain further responses to

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his requests for production of documents, and interrogatories. He claims the responses provided

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were incomplete, deficient and evasive. Defendants object to the motion to compel on numerous
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grounds, including the timeliness of the motion, that the discovery requests were not signed by

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plaintiff who is proceeding in propria persona, and that appropriate responses were provided.

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As discussed above, with no good cause shown to extend the deadline, plaintiff’s

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motion to compel will be denied as untimely. However, if the merits of the motion were to be

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considered, defendants’ objections would be sustained, specifically, based on plaintiff’s failure to

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sign the requests.

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Defendants object to the requests on the basis that Mr. Cooley signed the

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discovery requests on behalf of plaintiff. As discussed above, as a non-attorney, Mr. Cooley

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cannot sign any documents pertaining to this action on plaintiff’s behalf . Defendants’ objection

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thereto is a valid objection. Rule 11 requires that “[e]very pleading, written motion, and other

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paper must be signed by at least one attorney of record . . . – or by a party personally if the party

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is unrepresented.” There is an exception in Rule 11 as to discovery. However, the rules

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governing discovery have the same requirement. Rule 26(g) states “every discovery request,

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response, or objection must be signed by at least one attorney of record . . . – or by the party

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personally, if unrepresented . . . .” An opposing party has no duty to act on an unsigned request

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until it is signed and the court must strike it unless a signature is promptly supplied after the

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omission is called to the party’s attention.

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Here, plaintiff attempted to cure the noted defect by providing a declaration

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indicating that it was his intention to propound the discovery requests personally. This attempted

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cure is insufficient. First, plaintiff should have resigned the requests and reserved them, prior to

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the defendants having the obligation to respond. This was not done. Even if it had been done,

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plaintiff’s requests would have been untimely. Plaintiff has been put on notice several times,

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based on the defendants’ continued objections to Mr. Cooley’s attempts to act as plaintiff’s

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representative, that he was required to act on his own behalf. This would include signing the

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discovery requests propounded. Plaintiff has been cautioned by the court of his need to follow

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the Federal Rules of Civil Procedure, despite his pro per status.
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Accordingly, the undersigned finds plaintiff’s motion to compel untimely, and is

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denied as such. However, even if the undersigned were to address the merits of the motion, the

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undersigned would sustain defendants’ objections and deny the motion.

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Defendants’ Motion for Protective Order

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Finally, defendants’ motion for protective order is unnecessary as the underlying

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motion to compel is denied.

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Based on the above, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for an extension of time (Doc. 56) is denied;

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Plaintiff’s motion to compel (Doc. 57) is denied as untimely; and

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Defendants’ motion for protective order (Doc. 62) is denied as

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unnecessary.

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DATED: September 29, 2014
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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