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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 CLAYTON DEL THIBODEAU, Pro Se, Case No.: 3:16-cv-02680-GPC-AGS Plaintiff, 11 12 v. 13 ORDER: ADT SECURITY SERVICES, a/k/a/ ADT HOLDINGS, INC., 14 15 (1) GRANTING PLAINTIFF’S REQUEST TO CONTINUE FINAL PRETRIAL STATUS CONFERENCE AND AMEND THE SCHEDULING ORDER; Defendant. 16 (2) DIRECTING PLAINTIFF TO CONSIDER SERVICE BY CM/ECF; 17 18 (3) DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION 19 20 21 [DKT. NO. 106.] 22 23 24 25 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 26 27 28 1 3:16-cv-02680-GPC-AGS 1 the scheduling order regulating pretrial proceedings; (3) to properly serve plaintiff in 2 accordance with law; and (4) to reconsider self-recusal. Dkt. No. 106. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. 26 27 28 2 3:16-cv-02680-GPC-AGS 1 Recognizing Plaintiff’s pro se status, the Court will describe opportunities 2 available to Plaintiff to ensure that each order and document in the docket of this case is 3 received. First, the Court will allow Plaintiff the opportunity to request access to the 4 CM/ECF system. The Casement/Electronic Case Files system referred to generally as 5 CM/ECF allows registered users to electronically file documents with the court and 6 allows the court to issue orders and notices. Whenever a filing is docketed by either a 7 party or the Court, a notice of electronic filing is generated and sent to the registered 8 user’s email address. Plaintiff has previously asserted that the service by mail process 9 usually takes place between three to four days after filing. Dkt. No. 95 at 19. 10 Accordingly, recognizing Plaintiff’s pro se status and desire to obtain instantaneous 11 notice of filings and notices, the Court will allow Plaintiff the opportunity to request 12 access to the CM/ECF system. 13 Plaintiff is DIRECTED to review Civil Rule 5.41 and the Southern District of 14 California’s Electronic Case Filing Administrative Policies and Procedures.2 The Clerk’s 15 Office can provide required training on the CM/ECF system. If Plaintiff wishes to obtain 16 access to CM/ECF, he may submit a motion to this Court requesting access to the Court’s 17 electronic filing system. 18 In the alternative, Plaintiff may access the docket at the public terminal available at 19 the federal district courthouse to ensure that he has received all filings. To the extent that 20 there are docket entries listed on the public docket that he has not received, Plaintiff 21 22 23 1 24 25 26 Available at 2 Available at cies_03-02-2018.pdf 27 28 3 3:16-cv-02680-GPC-AGS 1 should affirmatively contact the Clerk’s Office to make them aware of any further service 2 issues. 3 Finally, the Court also wishes to inform Plaintiff that the telephone call made to 4 him by Magistrate Judge Schopler’s law clerk was outside of any rule of court, statute or 5 the usual procedures of the Southern District of California. The standard procedure of 6 this Court is to issue notices and filings via mail or the CM/ECF system, as described 7 above. Plaintiff should not expect any telephone calls or follow-up emails from this 8 Court or from Magistrate Judges Schopler and Averitte. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. 26 27 28 4 3:16-cv-02680-GPC-AGS 1 Plaintiff has not provided any basis––under the above case law––to warrant 2 reconsideration of the Court’s prior order. There is no newly discovered evidence of 3 bias, the Court determines it has not committed any clear error, and no intervening 4 change in controlling law exists. Plaintiff request on reconsideration does not allege bias 5 stemming from an extrajudicial source. Accordingly, the Court will deny Plaintiff’s 6 request for reconsideration. See In re Focus Media, Inc., 378 F.3d 916, 930 (9th Cir. 7 2004). 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 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. 3. 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 3 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. 27 28 5 3:16-cv-02680-GPC-AGS 1 comply with these disclosure requirements could result in evidence preclusion or other 2 sanctions under Fed. R. Civ. P. 37. 3 4. Counsel and any party representing himself shall meet and take the action 4 required by Local Rule 16.1(f)(4) by October 5, 2018. At this meeting, the parties shall 5 discuss and attempt to enter into stipulations and agreements resulting in simplification of 6 the triable issues. They shall exchange copies and/or display all exhibits other than those 7 to be used for impeachment. The exhibits shall be prepared in accordance with Local 8 Rule 16.1(f)(4)(c). Counsel and any party representing himself shall note any objections 9 they have to any other parties’ Pretrial Disclosures under Fed. R. Civ. P. 26(a)(3). They 10 11 shall cooperate in the preparation of the proposed pretrial conference order. 5. Counsel for defendants will be responsible for preparing the pretrial order 12 and arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f). By October 13 12, 2018, defense’s counsel must provide plaintiff with the proposed pretrial order for 14 review and approval. Plaintiff must communicate promptly with defendants’ attorney 15 concerning any objections to form or content of the pretrial order, and both parties shall 16 attempt promptly to resolve their differences, if any, concerning the order. 17 6. The Proposed Final Pretrial Conference Order, including objections to any 18 other parties’ Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be prepared, served and 19 lodged with the assigned district judge by October 19, 2018, and shall be in the form 20 prescribed in and comply with Local Rule 16.1(f)(6). 21 7. The final Pretrial Conference is scheduled on the calendar of the Honorable 22 Gonzalo P. Curiel on October 26, 2018 at 1:30pm. The Court will set a trial date 23 during the pretrial conference. The Court will also schedule a motion in limine hearing 24 date during the pretrial conference. 25 8. The parties must review the chambers’ rules for the assigned district judge 26 27 28 6 3:16-cv-02680-GPC-AGS 1 2 3 4 5 6 and magistrate judge. 9. A post trial settlement conference before a magistrate judge may be held within 30 days of verdict in the case. 10. The dates and times set forth herein will not be modified except for good cause shown. 11. Briefs or memoranda in support of or in opposition to all motions noticed for 7 the same motion day shall not exceed twenty-five (25) pages in length, per party, without 8 leave of the judge who will hear the motion. No reply memorandum shall exceed ten 9 (10) pages without leave of a district court judge. Briefs and memoranda exceeding ten 10 11 12 (10) pages in length shall have a table of contents and a table of authorities cited. 12. Plaintiff’s counsel shall serve a copy of this order on all parties that enter this case hereafter. 13 14 15 CONCLUSION Having considered the motion, the Court will: 16 17  (1) GRANT Plaintiff’s Request for an Amended Scheduling Order and Pre-Trial 18 Conference Date. The revised deadlines are set forth above. The Pre-Trial 19 Conference is set for October 26, 2018 at 1:30 PM in Courtroom 2D. 20  (2) DIRECT Plaintiff to consider the use of the CM/ECF system. If Plaintiff 21 wishes to use the CM/ECF system, Plaintiff should file a motion to request access 22 promptly so that he can obtain access and training on the system for future use and 23 access. 24 25  (3) DENY Plaintiff’s Request for Reconsideration of the Court’s Dkt. No. 103 Order. 26 27 28 7 3:16-cv-02680-GPC-AGS 1 IT IS SO ORDERED. 2 Dated: July 24, 2018 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 3:16-cv-02680-GPC-AGS

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