Rice v. Bauer et al

Filing 64

ORDER denying as untimely 60 Motion to Compel signed by Magistrate Judge Edmund F. Brennan on 04/25/17. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KORDY RICE, 12 No. 2:15-cv-0236-JAM-EFB P Plaintiff, 13 v. 14 D. BAUER, et al., 15 ORDER Defendants. 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 18 U.S.C. § 1983. He alleges that the defendants violated his Eighth Amendment rights by using 19 excessive force against him. ECF No. 1. He has filed a motion to compel (ECF No. 60) wherein 20 he argues that defendants should be compelled to answer discovery requests to which they object 21 as untimely. Id. at 2. For the reasons stated hereafter, the motion is denied. 22 I. Procedural Background The scheduling order specified that discovery was to be completed by September 2, 2016. 23 24 ECF No. 37 at 4. After extensions were granted by the court, the deadline was continued to 25 November 2, 2016. ECF No. 41. This motion was filed on February 16, 2017. ECF No. 60. 26 Thus, the motion is clearly late and the question is whether there is any just cause in excusing 27 plaintiff’s delay in pursing it. 28 ///// 1 1 The due dates and the history of their extensions is as follows. Motions to compel were to 2 be filed by that date and requests for discovery pursuant to Fed. R. Civ. P. 31, 33, 34, or 36 were 3 to be served by July 1, 2016. Id. On June 28, 2016, plaintiff moved for a sixty day extension of 4 time to submit discovery. ECF No. 40. The court granted that extension of time on July 21, 2016 5 and directed plaintiff that: (1) any requests for discovery pursuant to Fed. R. Civ. P. 31, 33, 34, or 6 36 were to be served by September 1, 2016; and (2) that any motion to compel discovery was to 7 be filed by November 2, 2016. ECF No. 41. 8 9 On November 2, 2016, defendants moved to compel answers to their interrogatories, requests for admission, and requests for production of documents. ECF No. 47. On that date, 10 defendants also moved to modify the discovery deadline for the purpose of conducting third-party 11 discovery. ECF No. 48. The court granted defendants’ motion to compel and directed plaintiff to 12 serve his responses within sixty days. ECF No. 59 at 3. The court also extended the discovery 13 deadline for seventy-four days (i.e. to April 17, 2017) for the limited purpose of allowing 14 defendants to conduct third-party discovery. Id.1 15 II. 16 Pursuant to Rule 37 of the Federal Rules of Civil Procedure, “[a] party seeking discovery Legal Standard 17 may move for an order compelling an answer, designation, production, or inspection.” Fed. R. 18 Civ. P. 37(a)(3)(B). The movant bears the burden of establishing that the requested discovery is 19 relevant. Aros v. Fansler, 548 F. App’x 500, 501 (9th Cir. 2013). Once the movant carries his 20 burden, the burden shifts to the opposing party to show that the “information is being sought to 21 delay bringing the case to trial, to embarrass or harass, is irrelevant or privileged, or that the 22 person seeking discovery fails to show need for the information.” Khalilpour v. CELLCO P-ship, 23 No. 09-02712, 2010 U.S. Dist. LEXIS 43885, at *4 (N.D. Cal. Apr. 1, 2010) (internal quotation 24 marks and citations omitted). Under Rule 16 of the Federal Rules of Civil Procedure, district 25 ///// 26 27 28 1 The court again extended the deadline for defendants to conduct third-party discovery, this time setting the deadline to April 24, 2017. ECF No. 63. Although plaintiff did not also seek a similar extension to conduct third-party discovery, even if he had done so he has not shown that the untimeliness of the current motion is due to any issues of third-party discovery. 2 1 courts “broad discretion to manage discovery and to control the course of litigation . . . .” Avila v. 2 Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011). 3 III. 4 Analysis Defendants argue that plaintiff’s motion should be denied because both his motion to 5 compel and his discovery requests were untimely. As noted supra, plaintiff’s discovery requests 6 were to be served by September 1, 2016. ECF No. 41. Defendants state, however, that they did 7 not receive discovery requests from plaintiff until February 2017. ECF No. 61 at 3; ECF No. 61- 8 1 ¶ 3. In his motion to compel, plaintiff states that the delay was caused by prison transfers and 9 his evaluation at a mental health facility. ECF No. 60 at 2-3. Plaintiff first notified the court of 10 his mental health evaluation in a request for extension of time filed in June 2016, however. ECF 11 No. 40. The court granted that request, thereby setting the current deadline of September 1, 2016 12 for propounding discovery requests. ECF No. 41. That order also set the deadline for motions to 13 compel to November 2, 2016. Id. Plaintiff failed to request further extensions of these deadlines. 14 He has also failed to show why, with the exercise of due diligence, he could not meet those 15 deadlines. 16 Based on the foregoing, plaintiff’s motion to compel is denied as untimely. He has failed 17 to adhere to or seek modification of the scheduling order. Parties should “diligently attempt to 18 adhere to that schedule throughout the subsequent course of the litigation.” Jackson v. Laureate, 19 Inc., 186 F.R.D. 605, 607 (E.D. Cal. 1999). Plaintiff has failed to demonstrate that diligence here. 20 IV. 21 22 Conclusion Accordingly, plaintiff’s motion to compel (ECF No. 60) is denied as untimely. DATED: April 25, 2017. 23 24 25 26 27 28 3

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