Thibodeau v. ADT Security Services

Filing 107

ORDER Granting 106 Motion to Continue Final Pretrial Conference and Amend the Scheduling Order; Directing Plaintiff to Consider Service by CM/ECF; and Denying Motion for Reconsideration. A Settlement Conference is rescheduled for September 12, 2 018 at 9:00 a.m. in the chambers of Magistrate Judge Lewis. Pretrial Disclosures shall be prepared, served and lodged with the assigned district judge by October 19, 2018. The final Pretrial Conference is scheduled on the calendar of the Honorable Gonzalo P. Curiel on October 26, 2018 at 1:30pm. Signed by Judge Gonzalo P. Curiel on 7/24/18. (All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CLAYTON DEL THIBODEAU, Pro Se,

Case No.: 3:16-cv-02680-GPC-AGS

Plaintiff,

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v.

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ORDER:

ADT SECURITY SERVICES, a/k/a/
ADT HOLDINGS, INC.,

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(1) GRANTING PLAINTIFF’S
REQUEST TO CONTINUE FINAL
PRETRIAL STATUS CONFERENCE
AND AMEND THE SCHEDULING
ORDER;

Defendant.

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(2) DIRECTING PLAINTIFF TO
CONSIDER SERVICE BY CM/ECF;

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(3) DENYING PLAINTIFF’S
MOTION FOR
RECONSIDERATION

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[DKT. NO. 106.]

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On July 23, 2018, Plaintiff Clayton Del Thibodeau (“Plaintiff” or “Thibodeau”)
filed a Motion requesting (1) to continue the final pretrial status conference; (2) to amend

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the scheduling order regulating pretrial proceedings; (3) to properly serve plaintiff in

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accordance with law; and (4) to reconsider self-recusal. Dkt. No. 106.

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I.

SERVICE
Plaintiff asserts inter alia in his motion that Magistrate Judge Schopler failed to

serve him with Dkt. No. 90, a scheduling order setting forth the amended pre-trial
deadlines in this case. As a result, Plaintiff states that he was not able to comply with the
requirements of this scheduling order. The Court will accept Plaintiff’s claim that he did
not receive the scheduling order and will suggest that the Plaintiff seek permission to
request access to the CM/ECF system to avoid any further issues with service of court
orders.
As background, the Court sets forth the process by which an Order, issued by a
judge in the Southern District of California, is sent to a pro se plaintiff. When an order is
docketed, a prompt in the Court’s electronic filing system (known as CM/ECF) asks
whether the document needs to be sent U.S. mail (as is required for a pro se plaintiff).
This generates a “non-registered users served via U.S. mail service” notification in the
docket text for the docket entry of the order. Once the order is docketed in CM/ECF and
has a docket entry number, the Clerk of Court will print the order, create an envelope for
the party to be served via U.S. mail, and place the envelope in the outbox to be picked up
and sent out to the litigant. If the United States postal service is unable to deliver the
mail to the litigant, then the mail will be “returned” and the Clerk of Court will stamp the
envelope and docket the returned envelope and document within the envelope. Given
these established procedures, it is highly unlikely that the various orders Plaintiff asserts
have not been “served” have not been mailed to him. In particular, no docket entry
reflects that any mail has been returned as undeliverable.

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Recognizing Plaintiff’s pro se status, the Court will describe opportunities

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available to Plaintiff to ensure that each order and document in the docket of this case is

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received. First, the Court will allow Plaintiff the opportunity to request access to the

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CM/ECF system. The Casement/Electronic Case Files system referred to generally as

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CM/ECF allows registered users to electronically file documents with the court and

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allows the court to issue orders and notices. Whenever a filing is docketed by either a

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party or the Court, a notice of electronic filing is generated and sent to the registered

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user’s email address. Plaintiff has previously asserted that the service by mail process

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usually takes place between three to four days after filing. Dkt. No. 95 at 19.

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Accordingly, recognizing Plaintiff’s pro se status and desire to obtain instantaneous

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notice of filings and notices, the Court will allow Plaintiff the opportunity to request

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access to the CM/ECF system.

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Plaintiff is DIRECTED to review Civil Rule 5.41 and the Southern District of

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California’s Electronic Case Filing Administrative Policies and Procedures.2 The Clerk’s

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Office can provide required training on the CM/ECF system. If Plaintiff wishes to obtain

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access to CM/ECF, he may submit a motion to this Court requesting access to the Court’s

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electronic filing system.

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In the alternative, Plaintiff may access the docket at the public terminal available at

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the federal district courthouse to ensure that he has received all filings. To the extent that

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there are docket entries listed on the public docket that he has not received, Plaintiff

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Available at
https://www.casd.uscourts.gov/Rules/SiteAssets/SitePages/LocalRules/Local%20Rules%202018.pdf
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Available at
https://www.casd.uscourts.gov/CMECF/Lists/Policies%20and%20Procedures/Attachments/8/CASDPoli
cies_03-02-2018.pdf

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should affirmatively contact the Clerk’s Office to make them aware of any further service

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issues.

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Finally, the Court also wishes to inform Plaintiff that the telephone call made to

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him by Magistrate Judge Schopler’s law clerk was outside of any rule of court, statute or

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the usual procedures of the Southern District of California. The standard procedure of

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this Court is to issue notices and filings via mail or the CM/ECF system, as described

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above. Plaintiff should not expect any telephone calls or follow-up emails from this

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Court or from Magistrate Judges Schopler and Averitte.

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By following the above procedures, any service issues can be properly addressed
and this case can move forward expeditiously.
II.

MOTION FOR RECONSIDERATION
Plaintiff also requests that the Court reconsider its denial of Plaintiff’s request for

the recusal of this undersigned Court and that of Magistrate Judge Schopler. Generally,
reconsideration of a prior order is appropriate only if the district court is (1) presented
with newly discovered evidence; (2) committed clear error or the initial decision was
manifestly unjust or (3) if there is an intervening change in controlling law. Sch. Dist.
No. 1J, Multnomah Cty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of
finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop,
229 F.3d 877, 890 (9th Cir. 2000). Whether to grant or deny a motion for reconsideration
is committed to the “sound discretion” of the district court. Navajo Nation v.
Confederated Tribes & Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th
Cir. 2003). A party may not raise new arguments or present new evidence if it could
have raised them earlier. Kona Enters., 229 F.3d at 890.

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Plaintiff has not provided any basis––under the above case law––to warrant

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reconsideration of the Court’s prior order. There is no newly discovered evidence of

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bias, the Court determines it has not committed any clear error, and no intervening

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change in controlling law exists. Plaintiff request on reconsideration does not allege bias

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stemming from an extrajudicial source. Accordingly, the Court will deny Plaintiff’s

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request for reconsideration. See In re Focus Media, Inc., 378 F.3d 916, 930 (9th Cir.

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2004).

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III.

REVISED SCHEDULING ORDER
Finally, recognizing Plaintiff’s alleged service issues, the Court will GRANT

Plaintiff’s request for an amended scheduling order and will reset the pre-trial conference
date in order to allow Plaintiff an opportunity to fully litigate this case. Accordingly, the
revised scheduling order is as follows:
1.

A Settlement Conference is rescheduled for September 12, 2018 at 9:00

a.m. in the chambers of Magistrate Judge Lewis.3 Counsel or any party representing
himself or herself who has not yet lodged a confidential settlement brief or who wishes to
file a supplemental brief may submit one via email to [e-mail]
by September 5, 2018. All parties are ordered to read and to fully comply with the
Chamber Rules of the assigned magistrate judge.
2.

Pursuant to Honorable Gonzalo P. Curiel’s Civil Pretrial & Trial Procedures,

the parties are excused from the requirement of Local Rule 16.1(f)(2)(a); no Memoranda
of Law or Contentions of Fact are to be filed.
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Counsel or any party representing himself shall comply with the pre-trial

disclosure requirements of Fed. R. Civ. P. 26(a)(3) by September 28, 2018. Failure to
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Magistrate Judge Lewis, at that time, will be sitting in the San Diego Courthouse. The parties should
confirm the location of the settlement conference prior to this date.

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comply with these disclosure requirements could result in evidence preclusion or other

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sanctions under Fed. R. Civ. P. 37.

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4.

Counsel and any party representing himself shall meet and take the action

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required by Local Rule 16.1(f)(4) by October 5, 2018. At this meeting, the parties shall

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discuss and attempt to enter into stipulations and agreements resulting in simplification of

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the triable issues. They shall exchange copies and/or display all exhibits other than those

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to be used for impeachment. The exhibits shall be prepared in accordance with Local

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Rule 16.1(f)(4)(c). Counsel and any party representing himself shall note any objections

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they have to any other parties’ Pretrial Disclosures under Fed. R. Civ. P. 26(a)(3). They

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shall cooperate in the preparation of the proposed pretrial conference order.
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Counsel for defendants will be responsible for preparing the pretrial order

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and arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f). By October

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12, 2018, defense’s counsel must provide plaintiff with the proposed pretrial order for

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review and approval. Plaintiff must communicate promptly with defendants’ attorney

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concerning any objections to form or content of the pretrial order, and both parties shall

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attempt promptly to resolve their differences, if any, concerning the order.

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6.

The Proposed Final Pretrial Conference Order, including objections to any

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other parties’ Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be prepared, served and

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lodged with the assigned district judge by October 19, 2018, and shall be in the form

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prescribed in and comply with Local Rule 16.1(f)(6).

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7.

The final Pretrial Conference is scheduled on the calendar of the Honorable

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Gonzalo P. Curiel on October 26, 2018 at 1:30pm. The Court will set a trial date

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during the pretrial conference. The Court will also schedule a motion in limine hearing

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date during the pretrial conference.

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8.

The parties must review the chambers’ rules for the assigned district judge

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and magistrate judge.
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A post trial settlement conference before a magistrate judge may be held

within 30 days of verdict in the case.
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The dates and times set forth herein will not be modified except for good

cause shown.
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Briefs or memoranda in support of or in opposition to all motions noticed for

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the same motion day shall not exceed twenty-five (25) pages in length, per party, without

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leave of the judge who will hear the motion. No reply memorandum shall exceed ten

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(10) pages without leave of a district court judge. Briefs and memoranda exceeding ten

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(10) pages in length shall have a table of contents and a table of authorities cited.
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Plaintiff’s counsel shall serve a copy of this order on all parties that enter

this case hereafter.

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CONCLUSION
Having considered the motion, the Court will:

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 (1) GRANT Plaintiff’s Request for an Amended Scheduling Order and Pre-Trial

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Conference Date. The revised deadlines are set forth above. The Pre-Trial

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Conference is set for October 26, 2018 at 1:30 PM in Courtroom 2D.

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 (2) DIRECT Plaintiff to consider the use of the CM/ECF system. If Plaintiff

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wishes to use the CM/ECF system, Plaintiff should file a motion to request access

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promptly so that he can obtain access and training on the system for future use and

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access.

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 (3) DENY Plaintiff’s Request for Reconsideration of the Court’s Dkt. No. 103
Order.

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IT IS SO ORDERED.

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Dated: July 24, 2018

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