Steshenko v. McKay et al

Filing 317

ORDER RE PLAINTIFF'S MOTION FOR "CLARIFICATION." Signed by Judge Richard Seeborg on 5/10/12. (cl, COURT STAFF) (Filed on 5/10/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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For the Northern District of California

United States District Court

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GREGORY NICHOLAS STESHENKO,
Plaintiff,

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No. C 09-5543 RS
ORDER RE PLAINTIFF’S MOTION
FOR “CLARIFICATION”

v.

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THOMAS MCKAY, et al.,

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Defendants.

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____________________________________/
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On April 25, 2012, the assigned magistrate judge entered an order compelling plaintiff to

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appear for deposition no later than May 7, 2012. Plaintiff allegedly refused to cooperate with

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defendants in scheduling that deposition, and they filed a motion for sanctions on May 1, 2012

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which is now pending before the magistrate judge.

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On May 7, 2012, plaintiff filed a motion that he characterized as seeking review of a

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“dispositive” order, in which he challenges the order that he appear for deposition. On May 9,

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2012, an order issued deeming that motion to have been brought under Civil Local Rule 72-2 as a

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challenge to a non-dispositive order, and setting a deadline for defendants to file a response.

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Later that day, plaintiff filed a motion that he characterizes as seeking “clarification” of

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the May 9th order. Specifically, plaintiff requests guidance as to whether or not he is expected to

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appear for deposition prior to a decision on his challenge to the magistrate judge’s ruling. The

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issuance of the May 9th order is irrelevant to the question plaintiff is now posing, and therefore it

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is not a matter of providing “clarification.” No later than May 8, 2012, plaintiff had already

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failed to comply with the magistrate judge’s order. Whether his motion objecting to that order

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was labeled as a challenge to a “dispositive” ruling or a “non-dispositive” ruling changes nothing.

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Plaintiff did not seek a stay of the order compelling his attendance at deposition; he simply

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elected not to comply while his challenge was pending. While the consequences of his noncompliance with the order, if any, remain to be decided, at this juncture the deadline for

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For the Northern District of California

United States District Court

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compliance has already passed.

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That said, the expiration of a deadline to comply with a discovery order does not relieve a

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party from an ongoing duty to comply with the order. Nor does the mere filing of a challenge to a

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discovery ruling automatically effect a stay. While discretion to issue a stay upon a showing of

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good cause lies with the magistrate judge, no stay has been requested, and there is nothing further

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arising from the May 9th order that can be “clarified.”

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IT IS SO ORDERED.

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Dated: 5/10/12
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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