Norsworthy v. Beard et al

Filing 136

SCHEDULING ORDER. Discovery plan due by 12/9/2015. Further Case Management Conference set for 12/10/2015 at 9:30 AM in Courtroom 9, 19th Floor, San Francisco. Discovery cut off 7/1/2016. Opening brief due 7/22/2016. Responses due 8/12/2016. Replies due 8/26/2016. Motion Hearing set for 9/12/2016 at 2:00 PM in Courtroom 9, 19th Floor, San Francisco before Hon. Jon S. Tigar. Signed by Judge Jon S. Tigar on December 2, 2015. (wsn, COURT STAFF) (Filed on 12/2/2015)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

MICHELLE-LAEL B. NORSWORTHY,

Case No. 14-cv-00695-JST

Plaintiff,
8

SCHEDULING ORDER

v.
9
10

JEFFREY BEARD, et al.,
Defendants.

United States District Court
Northern District of California

11
12
13

This Order arises from the Case Management Conference conducted on December 2, 2015.

14

On October 5, 2015, the Ninth Circuit dismissed Defendants’ appeal of this Court’s

15

preliminary injunction order on the grounds that the case became moot upon Plaintiff’s release on

16

parole. Norsworthy v. Beard, 802 F.3d 1090, 1092 (9th Cir. 2015). The panel did not vacate this

17

Court’s preliminary injunction order, however, but instead remanded the case to this Court to

18

determine “whether to vacate its preliminary injunction order, as well as to consider the question

19

of the award of attorneys' fees.” Id. at 1093. The panel directed this Court to make its

20

determination based on whether the appeal “became moot through happenstance or the defendants'

21

own actions” and a consideration of the factors set forth in Ringsby Truck Lines, Inc. v. W.

22

Conference of Teamsters, 686 F.2d 720, 722 (9th Cir. 1982). Id. at 1092-93; see also Dilley v.

23

Gunn, 64 F.3d 1365, 1371 (9th Cir. 1995) (noting that “Ringsby may apply even when both

24

parties play a role in the events mooting the appeal” and “Ringsby can apply even if the appellant

25

engaged in the conduct which caused the mootness for a purpose other than to prevent the

26

appellate court's review of the district court's order”). This Court was directed to make its

27

determination based on “full knowledge of all the facts.” 802 F.3d at 1092 n.1.

28

Plaintiffs now request the ability to take discovery concerning the process by which

1

Defendants released the Plaintiff on parole, so that they can assemble the evidence necessary to

2

file a motion and participate in the hearing that the Ninth Circuit’s remand order contemplates.

3

ECF No. 134 at 3-4. 1 They request a discovery period of six months, during which they anticipate

4

serving Defendants with requests for production, interrogatories and deposition notices regarding

5

the various decisions underlying Plaintiff’s release, “to determine what role, if any, Defendants

6

played in influencing the timing of these decisions.” Id.

7

For their part, Defendants propose no schedule of any kind for resolving the questions

8

posed by the Ninth Circuit and remanded to this Court for decision. They make no suggestion

9

regarding the appropriate length of time for discovery or what forms that discovery should take.
Instead, they take the position that because the appeal of the case became moot when Plaintiff was

11
United States District Court
Northern District of California

10

released from CDCR, this Court no longer has jurisdiction and the case should be dismissed. ECF

12

No. 134 at 5 (“Because that fact deprives the Court of jurisdiction, this case should be

13

dismissed.”). It is impossible to reconcile Defendants’ stated position with the clear language of

14

the Ninth Circuit’s order, which expressly vests jurisdiction in this Court to resolve the questions

15

posed by the panel.
The Defendants also make several statements of fact about the circumstances leading up to,

16
17

and reasons for, the Plaintiff’s release on parole ‒ statements they apparently hope this Court will

18

accept at face value without giving Plaintiffs the right to explore or cross-examine them. Id. This

19

form of argument was not persuasive to the Ninth Circuit, 802 F.3d at 1092 n.1 (“although our

20

dissenting colleague may be willing to accept the defendants' assertions regarding the

21

independence of the parole review process, we are not so convinced”), and it is equally

22

unpersuasive here.
In short, the Defendants’ position is not a proposal for how to effectuate the Ninth

23
24

Circuit’s directive, but simply a statement of disagreement with it. The Plaintiff’s proposed

25

course of action is a measured and reasonable one. Accordingly, the Court now sets the following

26

schedule:

27
1

28

All references to page numbers in docketed materials are to the pagination provided by the
Court’s Electronic Case Filing system.
2

1

Discovery cut-off

July 1, 2016

2

Plaintiff’s opening brief regarding vacatur

July 22, 2016

3

Defendants’ opposition

August 12, 2016

4

Plaintiff’s reply

August 26, 2016

5

Hearing on Plaintiff’s motion re vacatur

September 12, 2016 at 2:00 p.m.

6

At this morning’s hearing, the parties disputed the appropriate scope of discovery. To

7

resolve these disputes, and by agreement of the parties as stated on the record, they will meet and

8

confer immediately regarding the scope of discovery. They will then file either a joint proposed

9

discovery plan or competing proposed plans by December 9, 2015. If they propose competing
plans, the Court will conduct a brief hearing on December 10, 2015 at 9:30 a.m. Discovery may

11
United States District Court
Northern District of California

10

commence immediately following the Court’s adoption of a discovery plan.

12

Within ten days of the issuance of the Court’s order on Plaintiff’s vacatur motion, the

13

parties are ordered to file a Joint Case Management Statement and a request for the setting of a

14

Case Management Conference. If Plaintiff seeks attorney’s fees, the parties must propose a

15

briefing and hearing schedule for resolution of that request.

16
17
18
19
20
21

The Court will not order the parties to engage in ADR efforts at this time, but will act
promptly on any joint request to facilitate such efforts.
IT IS SO ORDERED.
Dated: December 2, 2015
______________________________________
JON S. TIGAR
United States District Judge

22
23
24
25
26
27
28
3