Antonetti v. Neven et al

Filing 103

ORDER Denying 91 Motion to Compel. Signed by Magistrate Judge Cam Ferenbach on 11/30/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOSEPH ANTONETTI,

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Plaintiff,
v.
DWIGHT NEVEN, et al.,

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Defendants.

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2:08-cv-01020-KJD-VCF
ORDER
(Motion For Court to Compel Defendants to
Answer Discovery and Interrogatories #91)

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Before the court is plaintiff Joseph Antonetti’s Motion To Compel. (#91). Defendants filed an
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Opposition (#96), and plaintiff filed a Reply (#101).
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Background
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The court granted plaintiff’s motion to proceed in forma pauperis on September 4, 2008. (#2).
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Subsequently, on December 22, 2008, plaintiff filed a motion for leave to file an amended complaint.
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(#5). The court granted plaintiff’s motion (#5) and screened his amended complaint on September 16,
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2009. (#7). Plaintiff’s amended complaint asserts claims against several defendants for constitutional
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violations that allegedly occurred at the High Desert State Prison. (#8). Defendants filed a motion to
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dismiss the amended complaint (#13) on November 5, 2009, based on their contention that they were
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immune from liability. As the court found that discovery was not necessary to address defendants’
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claim of immunity, it stayed discovery pending the outcome of the motion. (#22). Thereafter, on
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September 27, 2010, the court partially granted defendants’ motion to dismiss (#13) and granted
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plaintiff’s motion to file a second amended complaint (#22). (#24). On the same day, the clerk filed
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plaintiff’s second amended complaint. (#25).
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Prior to any scheduling order being entered, on October 11, 2010, remaining defendants filed
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a motion for summary judgment, asserting, among other defenses, immunity. (#26). In May 2011,

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when the defendants’ motion was fully briefed but not yet ruled upon, the plaintiff filed a motion for

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appointment of counsel (#37) and a motion for discovery (#38). On October 17, 2011, the court entered

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an order denying plaintiff’s motion for appointment of counsel (#37), granting plaintiff’s motion for

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discovery (#38), and setting discovery deadlines. (#47). The order provided a discovery cut-off date of

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January 15, 2012, and a December 16, 2011, deadline for adding new parties and amending pleadings.

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Id.

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On October 19, 2011, only two days after the court denied plaintiff’s first request for

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appointment of counsel, plaintiff filed another motion for appointment of counsel. (#49). The court

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denied the plaintiff’s motion for counsel (#49). (#52). On December 20, 2011, the plaintiff filed a

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motion for final disposition. (#53). On January 4, 2012, the plaintiff filed a motion to amend/correct

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complaint. (#54). Defendants filed a motion to extend time on February 14, 2012. (#58). On February

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22, 2012, plaintiff filed his third motion for appointment of counsel. (#59). On March 1, 2012, the

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court denied plaintiff’s motion for counsel (#59). (#62). On April 16, 2012, the court denied plaintiff’s

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motion for final disposition (#53) and motion to amend/correct complaint (#54), and granted plaintiff

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motion to extend time (#58). (#64).

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Defendants filed a motion for summary judgment on April 17, 2012. (#64). The court issued

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an order denying the motion for summary judgment (#64) on August 9, 2012. (#80). On August 17,

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2012, plaintiff filed a motion for leave to amend complaint. (#81). On September 27, 2012, plaintiff

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filed a motion for appointment of expert. (#87). On October 24, 2012, plaintiff filed the instant motion

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to compel. (#91). On November 8, 2012, the court issued an order denying plaintiff’s motion for leave

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to amend complaint (#81), stating that the court will not entertain any further motions to amend, as

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plaintiff continuously fails to “identify which proposed new defendants could not be identified earlier

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when the evidence Plaintiff relies on was in his hands early in the litigation.” (#94). Defendants filed

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an opposition to plaintiff’s motion to compel (#91) on November 13, 2012. (#96). On November 15,

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2012, plaintiff filed another motion to amend complaint. (#97). Plaintiff filed his reply in support of

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his motion to compel (#91) on November 27, 2012. (#101). On November 29, 2012, the court issued

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a minute order scheduling a hearing on the motion to appoint an expert (#87) for January 29, 2013.

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(#102).

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Motion To Compel (#91)

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Plaintiff filed one document seeking two forms of relief: (1) asking the court for a thirty day

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extension past November 27, 2012, to amend or add parties and (2) asserting that the “court may wish

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to compel defendants to answer discovery and interrogatories,” which the court separated into two

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documents. (#90 and #91). The Honorable Judge Dawson denied plaintiff’s request for a thirty day

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extension in his November 8, 2012, order. (#94). With regard to the relief sought relating to discovery,

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plaintiff argues that defendants “have not answered interrogatories, provided discovery, or allowed Mr.

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Antonetti to review medical file,” and attaches an October 15, 2012, letter from defense counsel

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regarding plaintiff’s discovery requests. (#91).

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Defendants assert in their opposition that they received discovery requests from plaintiff on

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October 15, 2012, in an unrelated case (Case No. 2:07-cv-00162-MMD-VCF), and that the letter

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attached to plaintiff’s motion (#91) was actually sent in response to those requests, but mistakenly

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included the wrong case number. (#96). On October 16, 2012, after realizing this, defense counsel sent

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plaintiff a follow-up letter (#96 Exhibit A) to explain the mistake. Id. An additional letter was sent to

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plaintiff on October 29, 2012 (#96 Exhibit B), to ensure plaintiff was aware of the mistake and knew

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which case the letter related to. Id.

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Defendants assert that plaintiff is now seeking to compel discovery answers that were not

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propounded in this case, and that the court should deny the improper request. Id. Defendants also

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assert that the plaintiff’s motion should be denied because discovery in this matter closed on January

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16, 2012, and since that deadline, the court has continuously denied plaintiff’s requests to amend, extend

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time, and to compel defendants to answer discovery. Id.

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The court finds that plaintiff’s motion to compel responses to discovery served on defendants

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in an unrelated matter after discovery in this matter has been closed for almost a year, is inappropriate

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and must be denied. Plaintiff makes arguments in his motion (#91) and reply (#101) relating to

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plaintiff’s medical files and asserting that defendants have failed to provide him the opportunity to

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review the files even after the court ordered the same. The court will address plaintiff’s medical files

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and his access thereto during the January 29, 2013, hearing on the motion to appoint expert (#87).

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(#102).

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Accordingly, and for good cause shown,

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IT IS ORDERED that plaintiff Joseph Antonetti’s Motion To Compel (#91) is DENIED.

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DATED this 30th day of November, 2012.

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CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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