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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KORDY RICE,

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No. 2:15-cv-0236-JAM-EFB P
Plaintiff,

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v.

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D. BAUER, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He alleges that the defendants violated his Eighth Amendment rights by using

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excessive force against him. ECF No. 1. He has filed a motion to compel (ECF No. 60) wherein

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he argues that defendants should be compelled to answer discovery requests to which they object

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as untimely. Id. at 2. For the reasons stated hereafter, the motion is denied.

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I.

Procedural Background
The scheduling order specified that discovery was to be completed by September 2, 2016.

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ECF No. 37 at 4. After extensions were granted by the court, the deadline was continued to

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November 2, 2016. ECF No. 41. This motion was filed on February 16, 2017. ECF No. 60.

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Thus, the motion is clearly late and the question is whether there is any just cause in excusing

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plaintiff’s delay in pursing it.

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The due dates and the history of their extensions is as follows. Motions to compel were to

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be filed by that date and requests for discovery pursuant to Fed. R. Civ. P. 31, 33, 34, or 36 were

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to be served by July 1, 2016. Id. On June 28, 2016, plaintiff moved for a sixty day extension of

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time to submit discovery. ECF No. 40. The court granted that extension of time on July 21, 2016

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and directed plaintiff that: (1) any requests for discovery pursuant to Fed. R. Civ. P. 31, 33, 34, or

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36 were to be served by September 1, 2016; and (2) that any motion to compel discovery was to

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be filed by November 2, 2016. ECF No. 41.

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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,

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defendants also moved to modify the discovery deadline for the purpose of conducting third-party

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discovery. ECF No. 48. The court granted defendants’ motion to compel and directed plaintiff to

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serve his responses within sixty days. ECF No. 59 at 3. The court also extended the discovery

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deadline for seventy-four days (i.e. to April 17, 2017) for the limited purpose of allowing

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defendants to conduct third-party discovery. Id.1

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II.

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Pursuant to Rule 37 of the Federal Rules of Civil Procedure, “[a] party seeking discovery

Legal Standard

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may move for an order compelling an answer, designation, production, or inspection.” Fed. R.

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Civ. P. 37(a)(3)(B). The movant bears the burden of establishing that the requested discovery is

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relevant. Aros v. Fansler, 548 F. App’x 500, 501 (9th Cir. 2013). Once the movant carries his

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burden, the burden shifts to the opposing party to show that the “information is being sought to

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delay bringing the case to trial, to embarrass or harass, is irrelevant or privileged, or that the

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person seeking discovery fails to show need for the information.” Khalilpour v. CELLCO P-ship,

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No. 09-02712, 2010 U.S. Dist. LEXIS 43885, at *4 (N.D. Cal. Apr. 1, 2010) (internal quotation

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marks and citations omitted). Under Rule 16 of the Federal Rules of Civil Procedure, district

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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.
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courts “broad discretion to manage discovery and to control the course of litigation . . . .” Avila v.

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Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011).

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III.

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Analysis
Defendants argue that plaintiff’s motion should be denied because both his motion to

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compel and his discovery requests were untimely. As noted supra, plaintiff’s discovery requests

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were to be served by September 1, 2016. ECF No. 41. Defendants state, however, that they did

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not receive discovery requests from plaintiff until February 2017. ECF No. 61 at 3; ECF No. 61-

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1 ¶ 3. In his motion to compel, plaintiff states that the delay was caused by prison transfers and

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his evaluation at a mental health facility. ECF No. 60 at 2-3. Plaintiff first notified the court of

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his mental health evaluation in a request for extension of time filed in June 2016, however. ECF

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No. 40. The court granted that request, thereby setting the current deadline of September 1, 2016

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for propounding discovery requests. ECF No. 41. That order also set the deadline for motions to

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compel to November 2, 2016. Id. Plaintiff failed to request further extensions of these deadlines.

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He has also failed to show why, with the exercise of due diligence, he could not meet those

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deadlines.

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Based on the foregoing, plaintiff’s motion to compel is denied as untimely. He has failed

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to adhere to or seek modification of the scheduling order. Parties should “diligently attempt to

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adhere to that schedule throughout the subsequent course of the litigation.” Jackson v. Laureate,

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Inc., 186 F.R.D. 605, 607 (E.D. Cal. 1999). Plaintiff has failed to demonstrate that diligence here.

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IV.

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Conclusion
Accordingly, plaintiff’s motion to compel (ECF No. 60) is denied as untimely.

DATED: April 25, 2017.

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