Turner v. Tierney

Filing 73

ORDER DENYING PLAINTIFF'S 58 MOTION FOR PROTECTIVE ORDER; DENYING DEFENDANT'S REQUEST FOR EXPENSES. Signed by Judge Maxine M. Chesney on August 16, 2013. (mmclc2, COURT STAFF) (Filed on 8/16/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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STEPHEN B. TURNER,
No. C 12-6231 MMC

For the Northern District of California

United States District Court

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Plaintiff,
ORDER DENYING PLAINTIFF’S MOTION
FOR PROTECTIVE ORDER; DENYING
DEFENDANT’S REQUEST FOR
EXPENSES

v.
DUSTIN TIERNEY,

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Defendant.

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Before the Court is plaintiff’s “Motion for Protective Order . . . Pursuant to

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F.R.C.P.26(c),” filed July 12, 2013, by which plaintiff seeks an order prohibiting defendant

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from “assert[ing], insinuat[ing], infer[ring], or in any other way maintain[ing] that [plaintiff]

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has an extant sex-offense; and to immediately cease and desist from stating that [plaintiff]

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is a convicted sex offender.” (See Mot. at 8:3-6.) Defendant has filed opposition by which,

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in addition, defendant requests an award of expenses incurred in opposing the motion. No

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reply has been filed. Having read and considered the papers submitted in support of and in

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opposition to the motion, the Court hereby rules as follows.1

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According to plaintiff, he was convicted of two misdemeanor counts of indecent

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exposure, which, he states, were dismissed pursuant to California Penal Code § 1385 and

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expunged pursuant to California Penal Code § 1203.4, respectively. (See Mot. at 7, ¶¶ 2-

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5.) In response, defendant argues dismissed/expunged convictions can nonetheless be

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By order filed August 12, 2013, the Court deemed the matter suitable for decision
on the parties’ written submissions and vacated the hearing set for August 16, 2013.

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considered for sentencing purposes in subsequent prosecutions and that various collateral

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consequences remain as well. Defendant further argues the particular convictions are

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relevant with respect to various factual allegations made by plaintiff.

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Although brought as a motion for a protective order under Rule 26(c) of the Federal

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Rules of Civil Procedure, the motion is mischaracterized as such, in that it does not, in any

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manner, concern the issue of discovery. See Fed. R. Civ. P. 26(c) (providing party “from

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whom discovery is sought may move for a protective order”). Rather, said filing is properly

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construed as a motion in limine. See Black’s Law Dictionary 1109 (9th ed. 2009) (defining

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“in-limine” motion as one brought “because of an issue about the admissibility of evidence

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believed by the movant to be prejudicial”). The Court thus need not address at this time

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the merits of the parties’ above-referenced arguments as the motion is premature. If and

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when plaintiff’s claims are tried to a jury, and if plaintiff is concerned that such references to

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his criminal history are prejudicial, he may raise those concerns at that time by way of a

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motion in limine. See id. In the interim, however, defendant might consider, with respect to

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any future filing, whether inclusion of such references is necessary.

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Accordingly, plaintiff’s motion is hereby DENIED.

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Lastly, defendant’s request for an order requiring plaintiff to pay the expenses

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defendant incurred in opposing the instant motion is hereby DENIED, for the reason that

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plaintiff’s motion, as discussed above, is not in actuality a motion for a protective order.

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See Fed. R. Civ. P. 37(a)(5)(B) (providing, where motion for protective order is denied,

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movant is entitled to “reasonable expenses incurred in opposing the motion,” unless “other

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circumstances make an award of expenses unjust”),

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IT IS SO ORDERED.
Dated: August 16, 2013
MAXINE M. CHESNEY
United States District Judge

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