Price v. La Mesa, City of et al

Filing 98

ORDER Denying Plaintiff's Motion for Discovery [ECF No. 93 ]. Signed by Magistrate Judge Allison H. Goddard on 12/19/2019. (All non-registered users served via U.S. Mail Service)(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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IMMANUEL PRICE,
Plaintiff,

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Case No.: 3:16-cv-1174-CAB-AHG
ORDER DENYING PLAINTIFF’S
MOTION FOR DISCOVERY

v.

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[ECF No. 93]
J. WIESE,

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Defendant.

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On November 19, 2019, Plaintiff filed a Motion Requesting Discovery Material

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(ECF No. 93) asking the Court to require Defendant to provide a copy of the San Diego

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Police Department’s “Canine Unit Operations Manual” (“SDPD Canine Unit Manual”).

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Defendant filed a Response in opposition to the Motion on November 22, 2019. ECF No.

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94. To date, Plaintiff has filed no Reply in support of the Motion. Therefore, the Court

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considers the Motion fully briefed and ripe for ruling.

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I.

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The Court begins with a brief overview of discovery in this case. On March 4,

BACKGROUND

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2019, the Court issued the initial Scheduling Order setting the fact discovery deadline on

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July 12, 2019 and the expert discovery deadline on September 27, 2019. ECF No. 63.

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On May 10, 2019, Plaintiff filed a Request for Subpoenas to Produce Documents
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pursuant to Fed. R. Civ. P. 45 (ECF No. 70), which requested that the Court provide him

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two blank subpoena forms to assist him in seeking third-party discovery. Specifically,

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Plaintiff wanted to subpoena the SDPD Canine Unit Manual from the San Diego Police

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Department and to subpoena documents from the San Diego County Jail concerning the

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medical treatment he received there for his dog bite wounds. Id. On July 3, 2019, the

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Court granted the Motion for Subpoenas and directed the Clerk of Court to mail Plaintiff

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two subpoena duces tecum forms, consistent with Fed. R. Civ. P. 45(a)(3). ECF No. 71 at

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3. In that Order, the Court also gave Plaintiff detailed instructions on how to complete the

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forms and directed him to return the completed forms along with a copy of the Order to

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the United States Marshal for service within twenty-one days of the date of the Order, or

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July 24, 2019. Id. at 3-4. See also 28 U.S.C. § 1915(d) (providing that, in cases where a

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prisoner plaintiff is proceeding in forma pauperis, “the officers of the court shall issue

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and serve all process, and perform all duties”). According to the relevant docket entry,

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the Court mailed the two blank subpoena duces tecum forms to Plaintiff along with the

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Order, and there is no docket entry indicating that any mail was returned to the Court as

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undeliverable.

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On August 16, 2019, the Court modified the Scheduling Order to extend the fact

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discovery deadline to September 27, 2019, the same day as the expert discovery deadline.

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ECF No. 82. Although the Court warned in that Order that no further extensions of time

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would be granted without a showing of good cause, on October 9, 2019, the Court sua

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sponte reopened discovery until November 22, 2019 for the limited purpose of permitting

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the parties to take one another’s depositions and extended the pretrial motions deadline

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accordingly. ECF No. 89.

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II.

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Plaintiff prepared and dated the present Motion on November 12, 2019, and it was

DISCUSSION

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filed one week later on November 19. ECF No. 93. In the Motion, Plaintiff again requests

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that the Court to provide him a subpoena to serve on the San Diego Police Department to

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demand the SDPD Canine Unit Manual. Id. However, Plaintiff never previously
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completed the subpoena duces tecum forms provided by the Court or followed the related

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instructions to obtain the assistance of the United States Marshal Service in completing

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service of the forms, as he was entitled to do under 28 U.S.C. § 1915(d). See ECF No. 71

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at 3-4.

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“In California, federal courts interpret Rule 45 as setting forth two types of

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subpoenas: pretrial discovery subpoenas and trial subpoenas.” nSight, Inc. v. PeopleSoft,

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Inc., No. 3:04CV3836MMC(MEJ), 2006 WL 988807, at *2 (N.D. Cal. Apr. 13, 2006)

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(citing F.T.C. v. Netscape Commc’ns Corp., 196 F.R.D. 559, 560 (N.D. Cal. 2000) and

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Integra Lifesciences I, Ltd. v. Merck KGaA, 190 F.R.D. 556, 562 (S.D. Cal. 1999)).

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Where, as here, a party wants to request production of books, documents, and other

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tangible items, such a request falls under the umbrella of pre-trial discovery subpoenas.

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nSight, 2006 WL 988807, at *2. “Case law establishes that subpoenas under Rule 45 are

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discovery, and must be utilized within the time period permitted for discovery in a case.”

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Integra, 190 F.R.D. at 561 (citing Marvin Lumber & Cedar Co. v. PPG Indus., Inc., 177

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F.R.D. 443, 445 (D. Minn. 1997)).

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Plaintiff offers no explanation in his Motion as to why he failed to meet the Court’s

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earlier deadline to complete and return the forms. Nor does Plaintiff otherwise establish

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good cause to reopen discovery to permit him to serve a third-party subpoena duces

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tecum on the San Diego Police Department long after the close of discovery, when he had

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ample opportunity to subpoena the SDPD Canine Unit Manual before the discovery cut-

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off. “A party may not use a trial subpoena to secure documents involving information

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known to them during discovery.” nSight, 2006 WL 988807, at *4. Therefore, the Court

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will deny Plaintiff’s request. In reaching this conclusion, the Court is particularly

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cognizant of the fact that the discovery deadlines in this matter have already been delayed

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twice, primarily to accommodate Plaintiff. When the Court first extended the fact

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discovery deadline to September 27, 2019 at Plaintiff’s request, the Court did so purely to

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afford Plaintiff leniency as a pro se litigant, despite finding that Plaintiff did not meet the

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“good cause” standard for modifying the Scheduling Order since his proffered reason for
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needing a continuance was that he “became singularly concerned with the [expert

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witness] issues and did not get around to the fact discovery.” ECF No. 82 at 5 (quoting

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ECF No. 77 at 3). And when the Court reopened discovery on a limited basis, it did so to

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permit the parties to take one another’s depositions, in part because Plaintiff had

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expressly sought such an opportunity. See ECF Nos. 87, 89. However, at this stage in the

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litigation, the Court will not again extend discovery and interfere with existing case

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deadlines to permit Plaintiff to pursue additional discovery that he had every opportunity

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to obtain earlier. See Marvin, 177 F.R.D. at 445 (“[T]o allow a party to continue with

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formal discovery . . . whether in the guise of Rule 45, or any of the other discovery

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methods recognized by [former] Rule 26(a)(5), after the discovery deadline unnecessarily

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lengthens [the] discovery process, and diverts the parties’ attention, from the post-

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discovery aspects of preparing a case for [t]rial . . . . [W]e can find no plausible reason to

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exempt Rule 45 discovery from the time constraints that are applicable to all of the

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discovery methods recognized by the Federal Rules of Civil Procedure.”).

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III.

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Based on the foregoing considerations, Plaintiff’s Motion for Discovery (ECF No.

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CONCLUSION

93) is DENIED.
IT IS SO ORDERED.

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Dated: December 19, 2019

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