Belyew v. Duch et al

Filing 51

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 6/02/21 DENYING 43 Motion to Compel. Also, RECOMMENDING that plaintiff's motion to amend 48 be denied. Motion to Amend 48 referred to Judge John A. Mendez. Objections due within 14 days.(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 LISA MARIE BELYEW, 12 Plaintiff, 13 14 v. Case No. 2:17-cv-01213-JAM-JDP (PC) ORDER DENYING MOTION TO COMPEL DEPOSITION AS MOOT AND RECOMMENDING THAT PLAINTIFF’S MOTION TO AMEND BE DENIED DUCH, et al., ECF Nos. 43, 48 15 Defendants. 16 17 Plaintiff Lisa Marie Belyew brought this action on June 9, 2017 and alleged that 18 defendants violated her Fourteenth Amendment rights by making noise to deprive her of sleep 19 while she was a pre-trial detainee. ECF No. 14 at 2. In November 2019, Judge Brennan1 issued a 20 scheduling order that directed the parties to complete discovery by April 10, 2020. ECF No. 22 at 21 4. Any amended complaint was to be filed by April 10, 2020. Id. Two motions are now 22 pending. The first, filed by defendants to compel plaintiff to sit for her deposition, is now 23 acknowledged to be moot and will be denied as such. See ECF No. 49 at 4 (stating that, since this 24 motion was filed, plaintiff sat for her deposition). The second, filed by plaintiff to amend her 25 complaint, should be denied. 26 Where, as here, a request to amend comes after the deadline set by the scheduling order, it 27 28 1 This case was reassigned to me on October 1, 2020. ECF No. 37. 1 1 is Rule 16 of the Federal Rules of Civil Procedure—not the more permissive Rule 15—that 2 controls. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir.1992) 3 (“Disregard of the [scheduling] order would undermine the court’s ability to control its docket, 4 disrupt the agreed-upon course of the litigation, and reward the indolent and the cavalier. Rule 16 5 was drafted to prevent this situation and its standards may not be short-circuited by an appeal to 6 those of Rule 15.”). Under Rule 16, a party must show good cause for not moving to amend 7 within the deadline. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). 8 Plaintiff has not made that showing here. 9 As mentioned above, Judge Brennan’s scheduling order directed that any amendment be 10 filed by April 10, 2020. Plaintiff did not file her motion to amend until April 9, 2021. ECF No. 11 48. In that motion, she argues that new claims have arisen since her return to Butte County Jail in 12 February 2021. Id. at 1-2. These new claims, as defendants correctly argue, fall outside the 13 scope of this case. If plaintiff wishes to litigate them, she may file a new action. Discovery has 14 closed in this case and should not be reopened. This case was brought in June 2017 and the 15 claims raised herein should be progressing toward resolution, not expanding. 16 17 18 Accordingly, it is ORDERED that defendants’ motion to compel, ECF No. 43, is denied as moot. Further, it is RECOMMENDED that plaintiff’s motion to amend, ECF No. 48, be denied. 19 I submit these findings and recommendations to the district judge under 28 U.S.C. 20 § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 21 Eastern District of California. Within 14 days of the service of the findings and 22 recommendations, any party may file written objections to the findings and recommendations 23 with the court and serve a copy on all parties. That document should be captioned “Objections to 24 Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings 25 and recommendations under 28 U.S.C. § 636(b)(1)(C). Failure to file objections within the 26 specified time may result in the waiver of rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 27 834, 839 (9th Cir. 2014). 28 2 1 2 IT IS SO ORDERED. 3 Dated: 4 5 June 2, 2021 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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