McClintock v. Cooper et al

Filing 42

ORDER signed by Magistrate Judge Kendall J. Newman on 03/27/20 DENYING 35 Motion to Compel. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN McCLINTOCK,

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Plaintiff,

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No. 2: 18-cv-0560 JAM KJN P

v.

ORDER

T. COOPER, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion to compel filed February 18,

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2020, pursuant to the mailbox rule. (ECF No. 35.) On March 13, 2020, defendants filed an

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opposition to plaintiff’s motion to compel. (ECF No. 39.) For the reasons stated herein,

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plaintiff’s motion to compel is denied.

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Pursuant to the December 19, 2019 scheduling order, responses to discovery requests are

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due forty-five days after the request is served. (ECF No. 30.) In the motion to compel, plaintiff

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alleges that he served defendants with a request for production of documents on December 29,

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2019. (ECF No. 35 at 1.) Plaintiff alleges that he served defendants with interrogatories on

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January 2, 2020. (Id. at 2.) Plaintiff alleges that defendants failed to respond to his discovery

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requests within forty-five days of service.

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Federal Rule of Civil Procedure 6(d) provides, in relevant part, that when a party must act

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within a specified time after being served and service is by mail, three days are added after the

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period would otherwise expire under Rule 6(a). In addition, if the last day to respond falls on a

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Saturday, Sunday or legal holiday, the period for responding runs until the end of the next day

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that is not a Saturday, Sunday or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).

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Defendants served plaintiff by mail with responses to the request for production of

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documents and interrogatories on February 19, 2020. (ECF No. 39-1 at 9-17.) Therefore,

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defendants had forty-eight days from December 29, 2019, to serve plaintiff with responses to his

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request for production of documents. Forty-eight days from December 29, 2019 was Saturday,

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February 15, 2020. The following Monday, i.e., February 17, 2020, was a federal holiday, i.e.,

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Presidents’ Day. Accordingly, defendants’ responses to plaintiff’s request for production of

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documents were due February 18, 2020. Defendants served plaintiff with their responses to his

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request for production of documents one day late, i.e., on February 19, 2020.

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In the opposition to plaintiff’s motion to compel, defendants admit that the responses to

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the request for production of documents were served one day late due to a calendaring error.

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Because plaintiff suffered no prejudice as a result of this one day delay, and has now apparently

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received the responses to his request for production of documents, plaintiff’s motion to compel as

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to defendants’ responses to his request for production of documents is denied.

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Defendants had forty-eight days from January 2, 2020 to serve plaintiff with responses to

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interrogatories. Forty-eight days from January 2, 2020, is February 19, 2020. Therefore,

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defendants’ responses to plaintiff’s interrogatories were timely served. Thus, plaintiff’s motion to

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compel as to defendants’ responses to his interrogatories is denied.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to compel (ECF No. 35)

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is denied.

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Dated: March 27, 2020

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