Gonzalez v. Veterans Administration et al

Filing 80

ORDER signed by Magistrate Judge Deborah Barnes on 10/15/18 ORDERING that defendant's 79 Ex Parte Application to Shorten Time is DENIED. The hearing of defendant's 78 Motion to Compel is CONTINUED to 10/26/2018 at 10:00 AM in Courtroom 27 (DB) before Magistrate Judge Deborah Barnes. Plaintiff's shall file a response on or before 10/19/18 and defendant shall file a reply, in any, to plaintiff's response on or before 10/24/18. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL E. GONZALEZ,

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No. 2:15-cv-1997 MCE DB PS

Plaintiff,
v.

ORDER

UNITED STATES OF AMERICA, et al.,
Defendants.

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Plaintiff, Daniel Gonzalez, is proceeding pro se and in forma pauperis. (ECF No. 6.) This

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matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. §

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636(b)(1). Plaintiff’s amended complaint alleges that medical professionals at the Veterans

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Administration Hospital, “negligently and inadvertently misdiagnosed and delayed” plaintiff’s

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medical treatment causing plaintiff harm. (Am. Compl. (ECF No. 11) at 2.)

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On October 12, 2018, defendant filed a motion to compel the deposition of plaintiff’s

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expert witness, Dr. Craig Bash. (ECF No. 78.) Defendant has also filed an ex parte application

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for an order shortening time to hear defendant’s motion on October 19, 2018. (ECF No. 79.)

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Local Rule 144(e) provides:

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Ex parte applications to shorten time will not be granted except upon
affidavit of counsel showing a satisfactory explanation for the need
for the issuance of such an order and for the failure of counsel to
obtain a stipulation for the issuance of such an order from other
counsel or parties in the action.
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Here, defendant argues that the October 19, 2018 hearing on shortened time is necessary

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because “[i]f this motion were filed on the usual 21-day notice period, (see Local Rule 251), it

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could not be heard until November 2, the last day of the discovery period.” (ECF No. 79 at 2.)

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The general 21-day notice period set forth in Local Rule 251(a), however, does not apply to

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defendant’s motion.
Instead, Local Rule 251(e) provides that “when there has been a complete and total failure

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to respond to a discovery request or order” the “aggrieved party may bring a motion for relief for

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hearing on fourteen (14) days notice.”1 Here, defendant’s motion argues there was a complete

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and total failure to respond to a discovery request, i.e., to produce Dr. Bash for deposition.

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Hearing defendant’s motion on 14 days’ notice would allow for the motion to be heard in

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compliance with the Local Rules, prior to the close of discovery, permit any further meet and

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confer, and allow for full briefing from the parties. Moreover, as defendant is aware, the

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undersigned may modify the discovery deadline in this action if necessary.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendant’s October 12, 2018 ex parte application to shorten time (ECF No. 79) is

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denied;
2. The October 19, 2018 hearing of defendant’s motion to compel (ECF No. 78) is

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continued to Friday, October 26, 2018, at 10:00 a.m., at the United States District Court, 501 I

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Street, Sacramento, California, in Courtroom No. 27, before the undersigned. Any party may

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appear at the hearing telephonically if the party pre-arranges such appearance by contacting Pete

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Buzo, the courtroom deputy of the undersigned magistrate judge, at [phone], no later than

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48 hours before the hearing; a party may not appear telephonically over a cellphone;
3. On or before October 19, 2018, plaintiff shall file a response to defendant’s motion to

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compel; and

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This provision also excepts the parties from the requirement for filing a Joint Statement re
Discovery Disagreement.
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4. On or before October 24, 2018, defendant shall file a reply, if any, to plaintiff’s

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response.

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Dated: October 15, 2018

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DLB:6
DB/orders/orders.pro se/gonzalez1997.short.time.den.ord

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