Burns et al v. City of Concord et al

Filing 42

ORDER DENYING 39 PLAINTIFFS' SECOND "EX PARTE" MOTION FOR EARLY DISCOVERY. Signed by Magistrate Judge Laurel Beeler on 7/16/2014.(lblc2, COURT STAFF) (Filed on 7/16/2014)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division JOHN BURNS et al., 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 No. C 14-00535 LB Plaintiffs, v. 13 ORDER DENYING PLAINTIFFS’ SECOND “EX PARTE” MOTION FOR EARLY DISCOVERY CITY OF CONCORD, et al., 14 15 16 [Re: ECF No. 39] Defendants. _____________________________________/ This civil rights lawsuit alleges that Defendants used excessive force that resulted in the death of 17 Charles Burns and the wrongful arrest of Bobby Lawrence. See Complaint, ECF No. 1.1 Plaintiffs 18 previously filed an ex parte motion for early discovery, see First Ex Parte Motion for Early 19 Discovery, ECF No. 9, but the court found good cause lacking and denied that motion. See 3/3/2014 20 Order, ECF No. 10. 21 Defendants then were served with the First Amended Complaint, and all of them moved to 22 dismiss it. See Antioch Motion, ECF No. 25; Concord Motion, ECF No. 26; Contra Costa Motion, 23 ECF No. 27. The court took these pending motions under submission and continued the initial case 24 management conference to September 25, 2014. See 7/2/2014 Clerk’s Notice, ECF No. 37; 25 7/11/2014 Clerk’s Notice, ECF No. 38. 26 27 1 28 Citations are to the Electronic Case File (“ECF”) with pin cites to the electronicallygenerated page numbers at the top of the document. C 14-00535 LB ORDER 1 Plaintiffs now have filed a second “ex parte” (even though Defendants have notice of it and were 2 served with it via ECF) motion to take early discovery. See Second Ex Parte Motion for Early 3 Discovery, ECF No. 39. In short, Plaintiffs say that they need discovery now because they might 4 need it to support their oppositions to the pending motions to dismiss, and because it might lead to 5 the discovery of other claims that, or defendants whom, will need to be added to this action. See 6 generally id. The City of Concord Defendants filed an opposition that argues that Plaintiffs’ motion 7 is both improper and unnecessary at this time. See Concord Opposition, ECF No. 41. 8 A court may authorize early discovery before the Rule 26(f) conference for the parties’ and 9 witnesses’ convenience and in the interests of justice. Fed. R. Civ. P. 26(d). Courts within the See, e.g., IO Group, Inc. v. Does 1-65, No. C 10-4377 SC, 2010 WL 4055667, at *2 (N.D. Cal. Oct. 12 For the Northern District of California Ninth Circuit generally consider whether a plaintiff has shown “good cause” for the early discovery. 11 UNITED STATES DISTRICT COURT 10 15, 2010); Semitool, Inc. v. Tokyo Electron America, Inc., 208 F.R.D. 273, 275-77 (N.D. Cal. 2002); 13 Texas Guaranteed Student Loan Corp. v. Dhindsa, No. C 10-0035, 2010 WL 2353520, at * 2 (E.D. 14 Cal. June 9, 2010); Yokohama Tire Crop. v. Dealers Tire Supply, Inc., 202 F.R.D. 612, 613-14 (D. 15 Ariz. 2001) (collecting cases and standards). 16 The court once again DENIES Plaintiffs’ request to take early discovery. First, Plaintiffs did not 17 comply with the procedures for resolving discovery disputes that are provided in the undersigned’s 18 standing order (which was provided to Plaintiffs upon their filing of the complaint, see Initial Case 19 Management Scheduling Order, ECF No. 4, and which is available on the court’s website). Those 20 procedures require, among other things, that if a meet-and-confer by other means does not resolve 21 the parties’ dispute, lead counsel for the parties must meet and confer in person. If that procedure 22 does not resolve the disagreement, the parties must file a joint letter brief instead of a formal motion. 23 The letter brief must be filed under the Civil Events category of "Motions and Related Filings > 24 Motions – General > Discovery Letter Brief." After reviewing the joint letter, the court evaluates 25 whether further proceedings are necessary, including any further briefing or argument. 26 Second, even if Plaintiffs had followed these procedures, the court again finds good cause 27 lacking. As the City of Concord Defendants point out, the pending motions were filed in response to 28 the operative First Amended Complaint and have been taken under submission, so any discovery C 14-00535 LB ORDER 2 1 received is irrelevant to the court’s decisions on those motions. It is true that the court continued the 2 initial case management conference (and thus the deadline for the parties to conduct a Rule 26(f) 3 conference) in light of the pending motions to dismiss, and the court believes that it is in the best 4 interest of all parties that that conference, and the fact discovery that may be taken after it occurs, is 5 best left until after the court decides the pending motions. 6 7 IT IS SO ORDERED. Dated: July 16, 2014 _______________________________ LAUREL BEELER United States Magistrate Judge 8 9 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C 14-00535 LB ORDER 3

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