Washington v. Essex et al

Filing 231

ORDER signed by Magistrate Judge Deborah Barnes on 2/12/2024 DENYING without prejudice the 198 renewed motion to compel and VACATING the 2/23/2024 hearing of the motion. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TRACYE BENARD WASHINGTON,

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No. 2:12-cv-3054 DAD DB P

Plaintiff,

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v.

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C. ESSEX, et al.,

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ORDER

Defendants.

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Plaintiff is a state inmate proceeding through counsel with a civil rights action pursuant to

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42 U.S.C. § 1983. Plaintiff filed motion to compel and noticed the motion for hearing before the

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undersigned, pursuant to Local Rule 302(c)(1). (ECF No. 198.) Since filing the motion to

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compel, the parties have rescheduled the hearing several times. (ECF Nos. 200, 201, 204, 205,

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212, 217, 220, 223.) For the reasons set forth below, the undersigned will vacate the hearing and

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deny the motion to compel without prejudice.
On October 21, 2021, the Ninth Circuit reversed the decision of the District Court and

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remanded this action for new trial. (ECF No. 167.) After remand, plaintiff filed a motion to

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reopen discovery. (ECF No. 176.) Defendants1 opposed the motion. (ECF Nos. 179, 181.) The

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District Judge assigned to this case granted the motion to reopen discovery and set a case

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schedule. (ECF No. 185.)

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Defendants Banyas and Essex are separately represented and filed separation oppositions.

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Plaintiff filed a motion to compel on March 2, 2023. (ECF No. 189.) Plaintiff noticed the

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motion before the assigned District Judge. (Id.) The District Court notified the parties that the

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motion should have been noticed before the undersigned, vacated the hearing, and directed the

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parties to contact the undersigned’s courtroom deputy to secure a hearing date. (ECF No. 190.)

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Plaintiff’s counsel filed a notice to reschedule the hearing on plaintiff’s motion to compel before

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the undersigned. (ECF No. 191.) Thereafter, the parties requested an informal telephonic

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discovery conference and plaintiff withdrew the motion to compel. (ECF Nos. 192, 193.) The

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conference was vacated because upon review of the parties’ joint statement the undersigned

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determined the dispute was not appropriate for an informal telephonic conference. (ECF No.

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196.)

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On April 10, 2023, the District Court granted defendant Essex’s ex parte motion to modify

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the scheduling order. (ECF No. 197.) That same day, plaintiff filed a renewed motion to compel.

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(ECF No. 198.) The motion was originally noticed for hearing on May 12, 2023. (Id. at 2.)

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Thereafter, the hearing was rescheduled nine times. (ECF Nos. 200, 201, 204, 205, 212, 214,

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217, 220, 223.)

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On January 19, 2024, plaintiff filed a motion for summary judgment. (ECF No. 224.)

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Several days later, the District Court vacated the pretrial conference set for January 30, 2024, and

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the Jury Trial set to commence on April 1, 2024. (ECF No. 225.)

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The most recent notice to reschedule the hearing on plaintiff’s motion to compel was filed

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on January 8, 2024. (ECF No. 223.) The January 8, 2024, notice filed by plaintiff continued the

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hearing on plaintiff’s motion to compel that was set for January 12, 2024. The notice states the

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hearing is continued to February 23, 2023. (ECF No. 223 at 1.)

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Pursuant to Local Rule 251 motions related to discovery shall consist of a brief notice of

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motion and motion “scheduling the hearing date[.]” Local Rule 251(a). “No other documents

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need be filed at this time.” (Id.) However, the motion “shall not be heard unless [] the parties

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have conferred and attempted to resolve their differences[.]” Local Rule 251(b). In this regard,

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“[c]ounsel for all interested parties shall confer in advance of the filing of the motion or in

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advance of the hearing of the motion in good faith effort to resolve the differences that are the
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subject of the motion.” (Id.) If, after meeting and conferring, the moving party remains

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dissatisfied, that party shall draft and file a “Joint Statement re Discovery Disagreement” at least

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fourteen days before the scheduled hearing date. Local Rule 251(a)-(c). The failure to file a Joint

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Statement may result in the hearing being dropped from the calendar. Local Rule 251(a).

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The parties did not file a timely joint statement. Additionally, the District Court’s

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scheduling order, as modified by minute order on September 1, 2023, states “[a]ll motions . . .

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shall be filed no later than 1/19/2024 and be noticed for hearing on a date consistent with Judge

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Drozd’s Standing order and on a date no more than 60 days after the filing of the motion.” (ECF

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No. 216.) The undersigned declines to hear the motion to compel absent modification of the

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District Court’s scheduling order. Therefore, it will deny the motion to compel without prejudice

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to its renewal.

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For the reasons set forth above, IT IS HEREBY ORDERED that:

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1. The renewed motion to compel (ECF No. 198) is denied without prejudice; and

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2. The February 23, 2024, hearing of the motion to compel is vacated.

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Dated: February 12, 2024

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DB:12

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DB/DB Prisoner Inbox/Civil Rights/R/wash3054.no.js.ord

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