Roettgen v. Foston et al

Filing 54

ORDER Responding to 53 Plaintiff's Request for Ruling. Signed by Magistrate Judge Bernard G. Skomal on 9/8/2015. (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOHN ROETTGEN,

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Plaintiff,
FOSTON, et al.,

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[Doc. No. 53 ]

Defendants.

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13CV1101-GPC (BGS)

ORDER RESPONDING TO
PLAINTIFF’S REQUEST FOR
RULING

v.

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Civil
No.

Plaintiff filed a Request for Court Ruling seeking a further ruling on his Reply to
Defendants’ Opposition to Plaintiff’s Motion to Serve D. Smith and Motion for
Extension of Discovery. [Doc. No. 53.] Because Plaintiff did not file a noticed motion,
the Court ruled on his Motion to Serve and Motion for Extension prior to receiving the
Reply. [Doc. No. 48.] The Court granted the Motion to Serve and denied without
prejudice the Motion for Extension of Discovery. [Id.] Accordingly, the Court will
construe Plaintiff’s Request for Ruling as a Motion for Reconsideration of the decision
issued August 14, 2015.1
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Plaintiff acknowledges he received the Court’s Order on his motions because he
specifies: “If nothing else, Plaintiff requests his Reply be treated as a motion for reconsideration
of Doc. 48.” [Doc. No. 53 at 3.]
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I. Motion for Leave to Serve D. Smith

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The Court granted this request and it is Plaintiff’s responsibility to complete the

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necessary paperwork in order for the U.S. Marshal to serve D. Smith. The docket reflects

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a summons was issued along with the appropriate IFP letter on August 14, 2015. [Doc.

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No. 49.] As such, the Court ruled in Plaintiff’s favor and there is no other additional

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ruling the Court can issue at this time.

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II. Request for 30-day Extension of Discovery

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Plaintiff wishes for the Court to reconsider its decision denying Plaintiff’s request

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for a 30-day extension of discovery. [Doc. No. 53 at 3.] The Court, however, denied the

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request without prejudice and set forth the information Plaintiff needed to provide in

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order for the Court to consider granting the 30-day extension of discovery. [Doc. No.

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45.] Applications for reconsideration require the party seeking relief to present to the

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judge a statement setting forth the new or different facts and circumstances claimed to

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exist which did not exist, or were not shown, in the prior request. Civ.L.R. 7.1.i.1.

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Plaintiff’s request for ruling does not set forth any new or different facts and

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circumstances not present in the initial request for an extension of time. Thus far,

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Plaintiff’s only articulated bases for his untimely discovery include: 1) the fact his yard

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was on lock down from July 15, 2015 to August 5, 2015, and 2) that he needed the

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responses to his first sets of interrogatories before propounding another set. [Doc. Nos.

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51, 53.] In addition to not offering any new or different facts or circumstances from the

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initial request, Plaintiff’s reasons are insufficient because timely discovery requests

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needed to be propounded no later than June 17, 2015 and Plaintiff fails to provide an

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adequate explanation for waiting until June 3, 2015 to propound the bulk of his

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discovery. Plaintiff’s exhibits attached to his response to Defendants’ opposition

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indicate he served a set of interrogatories on Defendant Hernandez on April 9, 2015.

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[Doc. No. 51at 15.] These questions were apparently geared toward discovering the

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proper person for Plaintiff to direct a subpoena for document records. [Id.] Defendant

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responded promptly—April 23, 2015. [Id.] Thus, Plaintiff could have immediately
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sought documents after receiving this response, yet did not do so until June 3, 2015.

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Furthermore, Plaintiff does not explain why he waited for more than two months before

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propounding interrogatories and requests for admission directed to the individual

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Defendants. [Doc. Nos. 51, 53.] Additionally, a review of the interrogatories and

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requests for admission directed to Defendants Tolbert, Pickett, Lee, Bravo, Davis,

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Hernandez, and Merchant did not require a response to any preliminary discovery prior

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to issuance. Therefore, Plaintiff does not establish good cause for why he did not serve

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this discovery for over two months. Had Plaintiff propounded the discovery promptly

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after the Case Management Conference, he would have had sufficient time for

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Defendants to respond and timely serve his second set of interrogatories. [See Doc. Nos.

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51, 53.] As the Court stated in its August 14, 2015 Order, the focus of the “good cause”

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inquiry is on the moving party’s reasons for seeking modification, “if that party was not

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diligent, the inquiry should end.” Id. Once again, Plaintiff has not shown he was

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diligent from March 20, 2015 to June 3, 2015—accordingly, his request for an extension

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of time is again denied.
Moreover, Plaintiff has not provided sufficient information to indicate the second

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set of interrogatories to individual defendants could not have been propounded at an

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earlier date, and he has not shown that the discovery is neither cumulative nor

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duplicative. Plaintiff seems to believe that providing a detailed explanation is not

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required because it will reveal his “strategy.” [Doc. No. 51 at 6.] Plaintiff therefore

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requests that he only be required to share his reasoning with the Court in camera. [Id.]

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The Court, however, may not engage in ex parte communications and allowing Plaintiff

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to provide the “good cause” for his additional and untimely discovery in camera would

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be an ex parte communication. The Court does not require Plaintiff to reveal his

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“strategy,” but if Plaintiff wants the Court to evaluate his arguments concerning whether

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the second set of requests are duplicative and cumulative, he must provide his argument

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regarding the “need and purpose” of the second set to both the Court and Defendants.

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Finally, Plaintiff mentions in passing that he “will be filing. . .a request to arbitrate

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discovery disputes. . . .” [Doc. No. 53 at 3.] Plaintiff, however, states he must wait to

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finish an opposition to a motion for summary judgment in another case before filing his

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request. [Id.] Plaintiff is reminded of the discovery dispute process outlined in the Case

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Management Conference Order, which was also explained to Plaintiff over the phone

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during the Case Management Conference: “all discovery motions must be filed within 30

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days of the service of an objection, answer or response which becomes the subject of

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dispute. . . and only after counsel have extensively met and conferred and reached

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impasse with regard to the particular issue.” [Doc. No. 36 at ¶ 2.] As such, any discovery

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disputes arising from responses and objections Defendants served July 3, 2015 needed to

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be brought to the Court’s attention no later than August 2, 2015. Before the Court will

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allow Plaintiff to present these disputes, he will need to establish excusable neglect and

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sufficient good cause to excuse his failure to abide by the discovery dispute procedures.

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In sum, the Court denies Plaintiff’s request for reconsideration.

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IT IS SO ORDERED.

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DATED: September 8, 2015

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Hon. Bernard G. Skomal
U.S. Magistrate Judge
United States District Court

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13cv1101-GPC