United States of America v. Peery

Filing 45

ORDER signed by Magistrate Judge Allison Claire on 9/17/2018 DENYING 7 , 27 , 32 Motion for Discovery without prejudice; DENYING 33 , 34 , 36 , 38 , 39 , 40 , 41 Motion to Dismiss without prejudice. Defendant's motion to dismiss s hall be filed no later than 10/31/2018, and shall be properly noticed for hearing before the undersigned. Defendant is limited to only one motion pending at any time. Such motion must be properly noticed for hearing. The 9/26/2018 hearing on plaintiff's amended motion for discovery, 32 , and amended motion to dismiss, 33 , is hereby VACATED; and Failure to comply with this order may result in improper documents being stricken from the record. (Washington, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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Plaintiff,

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No. 2:18-cv-01074 JAM AC

v.

ORDER

NEWMAN S. PEERY,

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Defendant.

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Pending before the court are defendant’s multiple motions to dismiss, ECF Nos. 33, 34,

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36, 38, 39, 40, 41 and requests regarding discovery related matters, ECF Nos. 7, 27, 32. To

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ensure that this action proceeds in an efficient manner, the court will exercise its inherent power

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to control and manage its docket. See Thompson v. Hous. Auth. of City of Los Angeles, 782

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F.2d 829, 831 (9th Cir. 1986).
I.

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Motions to Dismiss
The court has reviewed the docket and all recent filings relating to defendants’ motions to

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dismiss. ECF Nos. 33, 34, 36, 38, 39, 40, 41. It is unclear which motion to dismiss defendant is

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seeking to pursue. The simultaneous pendency of multiple motions results in confusion and delay

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for the court and the parties. To maintain efficient management of the case docket, the court will

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deny all pending motions to dismiss without prejudice, and impose a strict schedule to ensure this

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action proceeds in an orderly fashion. Defendant must bring all his arguments for dismissal in a

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single motion.

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II.

Discovery Motions
Defendant has also filed multiple discovery motions seeking various relief. See ECF Nos.

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7, 27, 32. However, defendant has failed to comply with his discovery obligations as set forth in

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the Federal Rules of Civil Procedure and the court’s Local Rules, prior to bringing these motions.

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“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any

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party’s claim or defense... Relevant information need not be admissible at the trial if the

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discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R.

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Civ. P. 26(b)(1). If a party does not make a required production, the requesting party may bring a

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motion before the court pursuant to Fed. R. Civ. P. 37 to compel disclosure. However, before a

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party may bring such a motion, the movant must show that he conferred, or made a good faith

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effort to confer, with the party opposing disclosure before seeking court intervention. Fed R. Civ.

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P. 37(a)(1); E.D. Cal. R. 251(b). The burden of ensuring that proper meet and confer discussions

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take place is on the moving party. E.D. Cal. R. (“Local Rule”) 251(b). The rule is clear:

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“Counsel for the moving party or prospective moving party shall be responsible for arranging the

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conference, which shall be held at a time and place and in a manner mutually convenient to

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counsel.” Id. (emphasis added).

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“A court can deny a motion to compel solely because of a party’s failure to meet and

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confer prior to filing the motion.” Rogers v. Giurbino, 288 F.R.D. 469, 477 (S.D. Cal. 2012); see

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also, Scheinuck v. Sepulveda, No. C 09-0727 WHA, 2010 WL 5174340, at *1-2, 2010 U.S. Dist.

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LEXIS 136529 (N.D. Cal. Dec. 15, 2010). Here, defendant has not complied with this court’s

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Local Rules or federal rules governing discovery disputes. Local Rule 251(b) establishes

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requirements for any party bringing a motion pursuant to Federal Rules of Civil Procedure 26

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through 37, including the requirement that the parties meet and confer and file a joint discovery

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statement. Here, no joint discovery statement has been filed. Moreover, there is no indication

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that the parties have met and conferred regarding the instant disputes. Because defendant, the

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moving party, did not satisfy Local Rule 251(b)’s meet and confer requirement and the joint
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discovery statement requirement, the motions for discovery will be denied without prejudice. See

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e.g., U.S. v. Molen, 2012 WL 5940383, at *1 (E.D. Cal. Nov. 27, 2012) (where a party fails to

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comply with Local Rule 251, discovery motions are denied without prejudice to re-filing).

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III.

Conclusion
For the reasons stated above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motions for discovery, ECF Nos. 7, 27, and 32, are DENIED without prejudice;

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2. Plaintiffs motions to dismiss, ECF Nos. 33, 34, 36, 38, 39, 40, and 41 are DENIED

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without prejudice;
3. Defendant’s motion to dismiss shall be filed no later than October 31, 2018, and shall be
properly noticed for hearing before the undersigned;
4. Opposition – or a statement of non-opposition – to the motion, shall be filed and served no
less than fourteen days prior to the noticed hearing date.

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5. A reply, if any, shall be filed no later than seven days preceding the date of the hearing.

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6. Defendant is limited to only one motion pending at any time. Such motion must be

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properly noticed for hearing.
7. The September 26, 2018 hearing on plaintiff’s amended motion for discovery, ECF No.
32, and amended motion to dismiss, ECF No. 33, is hereby VACATED; and
8. Failure to comply with this order may result in improper documents being stricken from
the record.

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IT IS SO ORDERED.

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DATED: September 17, 2018

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