CSAA Insurance Exchange v. Broan-NuTone LLC

Filing 55

ORDER signed by Magistrate Judge Allison Claire on 11/8/2018 DENYING 42 Motion to Compel as untimely, and VACATING the hearing set for 11/14/2018. (Huang, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CSAA INSURANCE EXCHANGE,

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No. 2:16-cv-02929 TLN AC

Plaintiff,
v.

ORDER

BROAN-NuTONE LLC,
Defendant.

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Before the court is plaintiff’s motion to compel discovery, filed September 26, 2018. ECF

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No. 42. On October 18, 2018 the court signed the parties’ stipulation to continue the hearing,

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originally set for October 31, 2018, to November 14, 2018. ECF No. 49. In signing the

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stipulation, the court neither made nor implied any finding regarding the timeliness of the motion.

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Discovery in this matter was to be completed by July 30, 2018. ECF No. 27. The court’s

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initial scheduling order specified that “completed’ means that all discovery shall have been

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conducted so that all depositions have been taken and any disputes relative to discovery shall

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have been resolved by appropriate order if necessary and, where discovery has been ordered, the

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order has been obeyed.” ECF No. 6. The day before plaintiff filed its motion to compel, Judge

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Nunley signed a stipulation and order extending many deadlines in this case, but not the

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discovery deadline. ECF No. 41.
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The untimeliness of the motion is not excused by the fact that a substantially similar

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motion had been filed and withdrawn before expiration of the deadline. See ECF Nos. 28

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(motion filed June 21, 2018), 30 (withdrawal of motion, filed July 19, 2018). When plaintiff re-

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filed its motion after the discovery deadline had passed, it did so without seeking leave of court or

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requesting further modification of the scheduling order. Plaintiff’s statement in its September 26,

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2018 notice of motion that it was “request[ing] the Court to place the motion back on its

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calendar,” ECF No. 42 at 2, did not have the effect of restoring the timely-filed and previously

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withdrawn motion, nunc pro tunc to its original June 2018 filing date. There was no such request,

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and there has been no such court order.

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Plaintiff’s motion to compel is untimely and therefore will not be considered. The parties

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are free to voluntarily conduct additional discovery, but the right to seek enforcement by this

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court expired no later than July 30, 2018. ECF No. 27. Because plaintiff’s motion is untimely it

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is DENIED, and the hearing set for November 14, 2018 is VACATED.

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IT IS SO ORDERED.
DATED: November 8, 2018

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