Arellano v. Blahnik

Filing 53

ORDER: (1) Granting in Part Plaintiff's Motion Requesting to Know Date of Deposition 49 ; and (2) Denying Plaintiff's Motion for Extension of Time 51 . Signed by Magistrate Judge Robert N. Block on 3/26/2018. (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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RAUL ARELLANO,
Plaintiff,

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Case No.: 16-cv-02412-CAB (RNB)

v.

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BLAHNIK,
Defendant.

ORDER:
(1) GRANTING IN PART
PLAINTIFF'S MOTION
REQUESTING TO KNOW DATE OF
DEPOSITION (ECF No. 49); AND
(2) DENYING PLAINTIFF'S
MOTION FOR EXTENSION OF
TIME (ECF No. 51)

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Plaintiff, a state prisoner proceeding prose and informa pauperis in this 42 U.S.C.

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§ 1983 civil rights matter, has filed two separate motions regarding discovery. Presently

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before the Court are Plaintiffs Motion Requesting to Know Date of Deposition (ECF No.

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49) and Plaintiffs Motion for Extension of Time (ECF No. 51). Specifically, Plaintiff

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requests thirty (30) day advance notice of his deposition so that he has time to prepare.

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(ECF No. 49.) Plaintiff also requests an extension of the Scheduling Order so that he can

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file an application to depose Defendant, file interrogatories, file an appeal, and obtain an

16-cv-02412-CAB (RNB)

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expert witness. (ECF No. 51.) For the following reasons, the Court GRANTS IN PART

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Plaintiff's Motion Requesting to Know Date of Deposition, and DENIES without

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prejudice Plaintiffs Motion for Extension of Time.

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On February 21, 2018, the Honorable Cathy Ann Bencivengo granted Defendant's

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ex parte motion to take the deposition of Plaintiff (ECF No. 43.) Pursuant to Federal Rule

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of Civil Procedure 30(b)(1 ), the deposing party "must give reasonable written notice." Fed.

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R. Civ. P. 30(b)(l). Based on the foregoing, and taking into consideration Plaintiffs

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ORDERS Defendant to give Plaintiff at least fifteen (15) days' written notice prior to his
deposition so that he has time to prepare.

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On October 23, 2017, the Court issued a Scheduling Order in this matter following

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the Case Management Conference. (ECF No. 25.) The Scheduling Order set the deadline

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to designate experts as February 16, 2018, and the discovery deadline as June 22, 2018.

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(Id. at 1-2.) To the extent Plaintiff seeks to depose Defendant 1 or to serve Defendant with

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written discovery, he has ample time under the current Scheduling Order. Pursuant to the

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Scheduling Order, discovery "must be initiated a sufficient period of time in advance of

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the cut-off date, so that it may be completed by the cut-off date, taking into account the

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times for service, notice and response as set forth in the Federal Rules of Civil Procedure."

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(Id. at 2.)

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interrogatories, for example, within thirty (30) days after being served. See Fed. R. Civ. P.

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33(b)(2). Therefore, if Plaintiff serves interrogatories in a timely manner, Defendant will

Under the Federal Rules of Civil Procedure, a party must respond to

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The Court notes that Plaintiff does not need the Court's permission to depose
Defendant. See Fed. R. Civ. P. 30; Fed. R. Civ. P. 31; Griffin v. Johnson, No. 13-cv-01599LJO-BAM (PC), 2016 WL 4764670, at *2 (E.D. Cal. Sept. 12, 2016); Merchant v. Lopez,
No. 09-856 WQH (NLS), 2010 WL 890139, at *1 (S.D. Cal. Mar. 8, 2010). However,
Plaintiffs in forma pauperis status does not entitle him to a waiver of any of the costs
associated with a deposition. See id.
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16-cv-02412-CAB (RNB)

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have an opportunity to respond before the discovery deadline. 2

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Plaintiff also seeks an extension of time to obtain an expert witness. (ECF No. 51.)

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However, the Court does not find good cause to modify the Scheduling Order to give

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Plaintiff additional time to obtain an expert witness. See Fed. R. Civ. P. 16(b)(4) ("A

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schedule may be modified only for good cause and with the judge's consent."). This is a

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§ 1983 prisoner civil rights action, in which Plaintiff claims Defendant deprived him of his

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First Amendment right to access to court by losing and/or destroying legal papers he

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needed to file a petition for writ of habeas corpus challenging his criminal conviction. (See

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ECF Nos. 1, 16.) In his motion, Plaintiff fails to demonstrate what type of expert he would

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need in such a case, must less whether he diligently sought to obtain one at an earlier date.

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See Fed. R. Civ. P. 16(b)(4); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609

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(9th Cir. 1992) ("Rule 16(b)'s 'good cause' standard primarily considers the diligence of

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the party seeking the amendment.") As such, Plaintiffs motion for an extension of time is

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DENIED without prejudice.

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For the foregoing reasons, the Court GRANTS IN PART Plaintiffs Motion

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Requesting to Know Date of Deposition (ECF No. 49), and DENIES without prejudice

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Plaintiffs Motion for Extension of Time (ECF No. 51).

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IT IS SO ORDERED.
Dated: March 26, 2018

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United States Magistrate Judge

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Pursuant to the Court's Civil Local Rules, "[u]nless filing is ordered by the
court on motion of a party or upon its own motion, interrogatories, requests for production
and answers thereto need not be filed unless and until they are used in proceedings." See
CivLR 33.l(c).
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16-cv-02412-CAB (RNB)