Fitzpatrick v. Fitzpatrick et al

Filing 83

ORDER signed by Magistrate Judge Allison Claire on 12/2/2014 ORDERING that Plaintiff's 80 Motion to reschedule depositions is construed as a motion to amend the discovery scheduling order and is GRANTED. Within twenty-one days from the date of this order, the parties shall file separate status reports in accordance with this order. The 4/30/2015 settlement conference is VACATED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL J. FITZPATRICK,

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No. 2:12-cv-02938 GEB AC PS

Plaintiff,

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v.

ORDER

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BRIAN FITZPATRICK, et al.,

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Defendants.

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Presently before the court is plaintiff’s December 1, 2014 motion to reschedule

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depositions. ECF No. 80. Because this action is afflicted with obvious discovery disagreements

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and scheduling problems, the court will summarize the recent procedural history before

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addressing plaintiff’s request.
On October 8, 2014, this court held a status (pretrial scheduling) conference. ECF No. 71.

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Plaintiff appeared in pro per and counsel Douglas Roeca appeared on behalf of defendants. ECF

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No. 71. On October 9, 2014, this court issued a scheduling order that set, inter alia, a discovery

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deadline of February 25, 2015. ECF No. 72 at 2. The court also scheduled a settlement

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conference before the undersigned for April 30, 2015. Id. at 6. The parties were directed to file a

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written waiver of any claim of disqualification of the undersigned conducting a settlement

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conference within thirty days from the date of the order. Id.

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In addition to the scheduling order, the court issued a separate order specifically

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addressing the scheduling of depositions in this action. ECF No. 73. The court’s October 9, 2014

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order notes that plaintiff represented he would not be available until November 15, 2014 and

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defendants would be unavailable after November 20, 2014 and through mid-April of 2015. Id.

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These scheduling restrictions were confirmed at the status conference. In light of the parties’

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limited availability, the court ordered that the depositions of the parties take place between

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November 15 and November 20, 2014, inclusive, in El Dorado County. Id. The court ordered

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that the deposition schedule may be amended “only by stipulation filed with the court.” Id.

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During the first week of November, plaintiff sent repeated email messages to the

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Courtroom Deputy Clerk seeking court intervention in ongoing disputes regarding production of

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documents. On November 7, 2014, the court issued an order directing the parties to cease

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communicating with the Courtroom Deputy Clerk regarding the substance of their discovery

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dispute. The court directed plaintiff to the policy of the undersigned regarding telephonic

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discovery conferences, and to the Local Rules governing motions to compel. The court reiterated

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that “[a]ll previously-ordered deadlines remain in place.” ECF No. 74.

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On November 12, 2014, plaintiff filed a “request for postponement of court ordered

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depositions and motion to compel production of requested discovery materials.” ECF No. 75.

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On November 13, 2014, the court denied plaintiff’s motion for failure to comply with this court’s

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prior orders and the Local Rules. ECF No. 76. The court pointed out that the deposition schedule

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may only be amended by stipulation of the parties and repeated the requirements of the Local

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Rules for filing discovery motions. Id.

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On November 14, 2014, following the parties’ failure to file a written waiver of any claim

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of disqualification of the undersigned conducting a settlement conference by the deadline

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articulated in the court’s October 9, 2014 order, the undersigned issued an order to show cause.

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ECF No. 77. The court directed the parties to each file, within fourteen days, a written waiver of

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any claim of disqualification of the undersigned conducting a settlement conference; in the

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alternative, either party could file a request that a settlement conference be scheduled before

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another magistrate judge. Id. The fourteen day deadline has passed and the parties have again
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failed to respond to the court’s order.

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On November 25, 2014, plaintiff filed a motion for production of documents, arguing that

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he “has made repeated attempts to obtain [certain] documents . . . .” ECF No. 78. The motion

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made no mention of the depositions that were to have been completed no later than November 20.

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Plaintiff’s motion failed to comply with Local Rule 251. On December 1, 2014, the court issued

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a minute order vacating plaintiff’s motion without prejudice to renewal in compliance with the

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Local Rules. ECF No. 79.

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On December 1, 2014, plaintiff filed a motion styled as a motion to reschedule
depositions. ECF No. 80. Plaintiff avers that he returned to this country from Ireland on an

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unspecified date in order to attend the depositions, but was thereafter unable to travel from New

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Jersey to California for the depositions due to medical problems that prohibited him from

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traveling until November 19. Id. at 3. Plaintiff states that he has attempted to reschedule the

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deposition dates with defense counsel to no avail. Id. at 1, 3. Plaintiff’s motion again fails to

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comply with Local Rule 251, which states in part that “a hearing of a motion pursuant to Fed. R.

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Civ. P. 26 through 37. . . may be had by the filing and service of a notice of motion and motion

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scheduling the hearing date on the appropriate calendar at least twenty-one (21) days from the

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date of filing and service.” L.R. 251(a).

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Despite plaintiff’s repeated failure to comply with the Local Rules, it is clear to the court

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that the current discovery schedule is no longer feasible. Accordingly, the court construes

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plaintiff’s motion as a motion to extend the discovery deadline and will grant it. However,

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plaintiff does not provide sufficient information for the court to properly address scheduling. The

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parties will therefore be ordered to file separate status reports within twenty-one days from the

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date of this order. The status reports must comply with Local Rule 240 and include information

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that will enable the court to set a new discovery deadline and otherwise amend the scheduling

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order.

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In light of the impending amended discovery schedule, the court will vacate the April 30,

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2015 settlement conference. The parties are cautioned that the court is mindful of their failure on

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two separate occasions to comply with the court’s orders regarding a waiver of any claim of
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disqualification. See ECF Nos. 72, 77. While the settlement conference is vacated, the parties

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are advised that further failures to comply with court orders, the Local Rules and the Federal

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Rules will result in sanctions, which may include monetary sanctions and a recommendation that

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this action be dismissed. See L.R. 110 (“Failure of counsel or of a party to comply with these

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Rules or with any order of the Court may be grounds for imposition by the Court of any and all

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sanctions authorized by statute or Rule or within the inherent power of the Court.”); see also Fed.

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R. Civ. P. 41(b).

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s December 1, 2014 motion to reschedule depositions, ECF No. 80, is

construed as a motion to amend the discovery scheduling order and is GRANTED;
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Within twenty-one days from the date of this order, the parties shall file separate

status reports in accordance with this order; and
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The April 30, 2015 settlement conference scheduled before the undersigned is

VACATED.
IT IS SO ORDERED.
DATED: December 2, 2014

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