Lee v. California Public Utilities Commission et al

Filing 152

ORDER by Magistrate Judge Jacqueline Scott Corley denying as moot 119 Motion to Compel; denying 143 Motion to Quash. (ahm, COURT STAFF) (Filed on 3/8/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ALIK YUSEF LEE, 7 Plaintiff, 8 ORDER RE: PLAINTIFF’S MOTION TO QUASH v. 9 CALIFORNIA PUBLIC UTILITIES COMMISSION, 10 11 United States District Court Northern District of California Case No.16-cv-00983-VC (JSC) Re: Dkt. No. 143 Defendant. 12 Plaintiff Alik Yusef Lee filed this Title VII employment discrimination action against his 13 14 former employer, the California Public Utilities Commission, over a year ago. Over the course of the 15 past several months, Defendant has attempted to obtain discovery from Plaintiff regarding his claims. 16 These efforts culminated in Defendant filing a motion to compel responses to discovery requests 17 seeking information regarding Plaintiff’s efforts to secure employment and income therefrom, which 18 the Court granted. (Dkt. No. 140.) At the same time Defendant was seeking this discovery from 19 Plaintiff, it also sought the discovery directly from Plaintiff’s former employers through subpoenas. 20 Over three weeks after these subpoena were issued, Plaintiff filed the now pending motion to quash the 21 subpoenas. (Dkt. No. 143.) Plaintiff’s motion to quash is DENIED as untimely. First, Plaintiff’s motion was filed three weeks after Plaintiff received notice of the 22 23 subpoenas and 12 days after the date of production under the subpoenas. (Dkt. No. 148-1 at 6-23.) 24 Federal Rule of Civil Procedure 45(d)(3) authorizes a “timely” motion to quash, but does not 25 specify the time period for filing such a motion; however, courts generally conclude that a motion 26 to quash must be filed before the date of compliance.1 See Marti v. Baires, No. 1:08-CV-00653- 27 1 28 Indeed, the delay in filing the motion has largely mooted the motion as all but one of the subpoenaed parties has already responded. (Dkt. No. 148-1 at ¶ 10.) 1 AWI, 2014 WL 1747018, at *2 (E.D. Cal. May 1, 2014) (collecting cases concluding that a 2 motion to quash or modify a subpoena after the compliance date is untimely.); U.S. ex rel. Pogue 3 v. Diabetes Treatment Centers of Am., Inc., 238 F. Supp. 2d 270, 278 (D. D.C. 2002) (“In general, 4 courts have read “timely” to mean within the time set in the subpoena for compliance.”). 5 Second, Plaintiff’s motion to quash was filed more than seven days after the discovery cut- 6 off in violation of Civil Local Rule 37-3. Plaintiff offers no explanation for his untimely filing, 7 and instead, argues that the information sought is personal and confidential and only sought as 8 retaliation against Plaintiff for filing this action. Federal Rule of Civil Procedure 26(b)(1) allows 9 for discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense”—evidence regarding Plaintiff’s damages and efforts to mitigate his damages satisfies this 11 United States District Court Northern District of California 10 standard. Plaintiff’s motion to quash is therefore DENIED. 12 With respect to other outstanding discovery matters, as fact discovery has closed and 13 Plaintiff failed to renew his motion to compel filed November 5, 2016, as the Court directed in its 14 November 14, 2016 Order, his second motion to compel is DENIED AS MOOT. (Dkt. No. 119.) 15 Lastly, the Court notes that Plaintiff still appears to be communicating with defense counsel 16 through his “communication proxy” Jose Ruiz. (Dkt. No. 14-1 at 37.) Plaintiff has been warned 17 twice that he must communicate with defense counsel directly. (Dkt. Nos. 140, 142.) Plaintiff 18 must desist from using Mr. Ruiz—a non-attorney—as an intermediary and must communicate 19 directly himself with defense counsel. 20 This Order disposes of Docket Nos. 119 and 143. 21 IT IS SO ORDERED. 22 Dated: March 8, 2017 23 24 JACQUELINE SCOTT CORLEY United States Magistrate Judge 25 26 27 28 2 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ALIK YUSEF LEE, Case No. 16-cv-00983-VC (JSC) Plaintiff, 8 v. CERTIFICATE OF SERVICE 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 CALIFORNIA PUBLIC UTILITIES COMMISSION, Defendant. I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on March 8, 2017, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 18 19 20 Alik Yusef Lee 15998 A E14th Street San Leandro, CA 94578 21 22 23 Dated: March 8, 2017 24 25 Susan Y. Soong Clerk, United States District Court 26 27 28 By:________________________ Ada Means, Deputy Clerk to the Honorable JACQUELINE SCOTT CORLEY 3

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