Steshenko v. McKay et al

Filing 487

ORDER by Judge Seeborg DENYING MOTION FOR LEAVE TO PROPOUND ADDITIONAL INTERROGATORIES 431 , DENYING MOTION TO ALTER PROCEDURES FOR DISCOVERY MOTIONS 477 , CONTINUING SUMMARY JUDGMENT MOTIONS 443 , 447 , 450 , 454 , 459 AND CASE MANAGEMENT CONFERENCE, AND VACATING PRETRIAL CONFERENCE AND TRIAL DATE. (rslc1, COURT STAFF) (Filed on 9/21/2012)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 SAN JOSE DIVISION 8 No. C 09-5543 RS 9 GREGORY NICHOLAS STESHENKO, Plaintiff, 11 For the Northern District of California United States District Court 10 12 13 v. THOMAS MCKAY, et al., 14 Defendants. 15 16 17 ORDER DENYING MOTION FOR LEAVE TO PROPOUND ADDITIONAL INTERROGATORIES, DENYING MOTION TO ALTER PROCEDURES FOR DISCOVERY MOTIONS, CONTINUING SUMMARY JUDGMENT MOTIONS AND CASE MANAGEMENT CONFERENCE, AND VACATING PRETRIAL CONFERENCE AND TRIAL DATE ____________________________________/ 1. Pursuant to Civil Local Rule 7-1(b), plaintiff Gregory Steshenko’s motion for leave to 18 serve additional interrogatories (Dkt. No. 431)is suitable for disposition without oral argument, and 19 the hearing set for October 4, 2012 is vacated. Although the body of the motion included a request 20 for a ruling “as soon as practicable,” it was set for hearing on October 4, 2012 when filed and was 21 not accompanied by any request under Civil Local Rule 6-3 to shorten time, such that it would 22 receive consideration on an expedited basis. As the existing discovery cut-off is October 5, 2012, 23 the motion is therefore untimely, as no additional interrogatories could be propounded sufficiently 24 in advance of that cut-off even if relief from the numerical limit were granted. See Civil Local Rule 25 37-3 (“Discovery requests that call for responses or depositions after the applicable discovery cut- 26 off are not enforceable . . . .”). The motion is therefore denied on that basis. 27 28 Even if the motion were not untimely, or were construed as including a request for relief from the existing cut-off, it would still be denied. Steshenko asserts that he needs additional 1 interrogatories in light of his inability to take discovery by deposition. While that contention is not 2 implausible,1 he has failed to make the required showing with specificity that additional 3 interrogatories are warranted, which would include at least some description of the interrogatories 4 he has already propounded, and perhaps more critically, compliance with Civil Local Rule 33-3. 5 (“A motion for leave to propound more interrogatories than permitted by Fed. R. Civ. P. 33 must be 6 accompanied by a memorandum which sets forth each proposed additional interrogatory and 7 explains in detail why it is necessary to propound the additional questions.”). All that said, the parties are aware that several matters are now pending that may affect 8 9 when, how, and if this case proceeds to trial. In light of those uncertainties, Steshenko is directed not to seek relief from the existing discovery cut-off at this juncture. In the event this litigation 11 For the Northern District of California United States District Court 10 ultimately goes forward, including Steshenko’s deposition, he may apply for the right to propound 12 additional discovery, and any such request will be evaluated in light of the circumstances then 13 existing and the showing of good cause he makes. 2. Pursuant to Civil Local Rule 7-1(b), Steshenko’s motion “seeking a court order removing 14 15 restrictions on discovery motions” (Dkt. No. 477) is suitable for disposition without oral argument, 16 and the hearing set for October 25, 2012 is vacated. Steshenko challenges a procedural order 17 entered by the assigned magistrate judge in light of the exceptionally large number of discovery 18 motions filed by the parties during the course of this action. The magistrate judge’s order is well- 19 within his discretion and authority to manage the docket. Neither Steshenko’s dissatisfaction with 20 the timing of responses to letters he has subsequently filed with the magistrate judge, nor the fact 21 that the defendants were permitted to file a motion, support the relief he requests. The motion is 22 denied. 23 24 25 26 27 28 1 Defendants’ argument that Steshenko has not been prevented from taking depositions is not dispositive. While defendants are correct that Steshenko has at all times had the legal right to take depositions, he has claimed that he lacks the financial resources to do so. The record is clear that he pursued various strategies in an attempt to address that situation. While his efforts may have lacked a legal basis, it is also apparent that he only recently became subjectively aware that he would not, as a practical matter, be able to pursue discovery through taking depositions. 2 1 3. The hearing on the pending motions for summary judgment (Dkt. Nos. 443, 447, 450, 2 454, and 459), and the further Case Management Conference, is continued to November 1, 2012 at 3 1:30 p.m. The pretrial conference presently set for November 1, 2012 and the trial date are vacated. 4 5 6 IT IS SO ORDERED. 7 Dated: September 21, 2012 8 RICHARD SEEBORG UNITED STATES DISTRICT JUDGE 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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