Percelle v. Pearson et al

Filing 53

ORDER by Judge Thelton E. Henderson granting in part and denying in part 47 Motion (tehlc1, COURT STAFF) (Filed on 6/26/2013)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4

STEVEN DALE PERCELLE,

5

Plaintiff,

6

v.

7

S. PEARSON, et al.,

8

Defendants.

NO. C12-5343 TEH
ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANTS’ MOTION FOR A
SCHEDULING CONFERENCE
AND STAY OF DISCOVERY

9

11
For the Northern District of California

United States District Court

10
Defendants seek an order setting a scheduling conference in this case and staying all

12 discovery pending a ruling on Defendants’ motion to dismiss. Docket No. 47. This case was
13 originally subject to the pro se prisoner exemption from discovery under Federal Rule of
14 Civil Procedure (“Rule”) 26(a)(1)(b)(iv). Since Plaintiff is no longer a prisoner and no
15 longer unrepresented, the parties are now subject to the disclosure requirements outlined in
16 Rule 26.
17

Defendants contend that the parties have not yet met and conferred under Rule 26(f);

18 Plaintiff responds that Defendants have essentially refused to meet and confer. Docket No.
19 52. The Court agrees that the parties’ previous communications did not constitute the require
20 Rule 26(f) conference. The Court therefore orders the parties to meet and confer under Rule
21 26(f) on or before July 8, 2013.
22

Defendants request a stay of all discovery pending a ruling on the motion to dismiss,

23 citing Rule 12(a)(4) & (b) for the proposition that they are not required to reveal their
24 defenses while the motion to dismiss is pending. Defendants cite no law suggesting that the
25 filing of a motion to dismiss is sufficient, in and of itself, to constitute cause for a stay of
26 discovery. Cf. Wood v. McEwen, 644 F.2d 797, 801 (9th Cir. 1981) (“A district court may
27 limit discovery ‘for good cause,’ Rule 26(c)(4), . . . and may continue to stay discovery when
28 it is convinced that the plaintiff will be unable to state a claim for relief” (citation omitted));

1 Baker v. Arkansas Blue Cross, C-08-03974SBAEDL, 2009 WL 904150 (N.D. Cal. Mar. 31,
2 2009). Plaintiff states in opposition to the stay that he seeks only discovery “relate[d] to the
3 administrative record,” including “facts and documents supporting that . . . Percelle satisfied
4 his obligation to seek administrative relief for being placed in segregated housing, and the
5 whereabouts of the named defendants who were unable to be served . . . .” Docket. No. 52 at
6 3.
7

The Court declines Defendants’ request for a blanket stay of all discovery. However,

8 it agrees with Defendants that discovery addressing the substantive claims in this case should
9 not proceed until the Court rules on the motion to dismiss. Accordingly, Plaintiff shall be

11 his case, and (2) the issue of the administrative exhaustion of his retaliation claim. Discovery
For the Northern District of California

United States District Court

10 permitted to obtain discovery relevant to (1) identifying and locating particular Defendants in

12 relevant to these two limited issues shall proceed according to the dictates of Rule 26(f) and
13 any and all other applicable rules. All other discovery is hereby stayed until the Court issues
14 its ruling on the motion to dismiss.
15

If a case management conference is necessary in this case, the Court will schedule one

16 in its order on the motion to dismiss.
17
18 IT IS SO ORDERED.
19
20 Dated: 6/26/13
21

THELTON E. HENDERSON, JUDGE
UNITED STATES DISTRICT COURT

22
23
24
25
26
27
28
2