Lefever v. Gutheridge et al

Filing 27

ORDER Granting 25 Motion to Compel. Signed by Magistrate Judge Peggy A. Leen on 11/15/2011. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FRANKLIN CARL LEFEVER,

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Plaintiff,
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vs.
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DEPUTY NICHOLSON,
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Defendant.
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__________________________________________)

Case No. 2:10-cv-01917-RLH-PAL
ORDER
(Mot to Compel - Dkt. #25)

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Before the court is Defendant Phillip Nicholson’s Motion to Compel (Dkt. #25), filed October

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4, 2011. No opposition to the motion was filed and the time for filing a response has now run. Plaintiff

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has not requested an extension of time in which to file a response.

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The motion seeks an order compelling the Plaintiff to respond to Defendant Phillip Nicholson’s

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interrogatories, requests for admission, and requests for production served on Plaintiff July 18, 2011.

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Counsel for Defendant represents that, when the Plaintiff failed to respond by the August 18, 2011

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deadline, counsel sent a letter reminding Plaintiff that the responses were overdue and unilaterally

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granting an extension of time to answer until September 7, 2011. As of the date the motion was filed,

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no response has been received. Copies of the written discovery served on Plaintiff are attached as

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exhibits to the motion.

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Pursuant to LR 7-2(d) “The failure of an opposing party to file points and authorities in

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response to any motion shall constitute a consent to the granting of the motion.” In a prior Order (Dkt.

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#26) the court granted Plaintiff’s request to extend the discovery plan and scheduling order deadlines

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because he was in the process of seeking the advice of counsel, and was then awaiting extradition to

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Oregon. After the motion was filed, defense counsel confirmed that Plaintiff was transferred to Oregon

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on the morning defense counsel arrived to take his deposition at the facility where Plaintiff was

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incarcerated. The court has extended the discovery plan and scheduling order deadlines, and the current

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discovery cutoff is April 2, 2012.

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Having reviewed and considered the matter,

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IT IS ORDERED that:

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1.

Defendant’s Motion to Compel (Dkt. #25) is GRANTED.,

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2.

Plaintiff shall have until December 15, 2011, to serve full and complete responses to

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Defendant’s interrogatories, requests for production, and requests for admission.
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Plaintiff is advised that failure to timely comply with this order may result in sanctions,
up to and including a recommendation to the district judge that his case be dismissed for

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failure to comply with the court’s order, and failure to comply with his discovery

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obligations.

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4.

As the court has no information concerning whether Plaintiff has been returned to the

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State of Nevada or remains in Oregon pursuant to his extradition, counsel for Defendant

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shall be responsible for investigating his custody status and serving the Plaintiff with a

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copy of this order, and shall file proof of service of the order.

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5.

Plaintiff is advised that it is his responsibility to keep the court apprised of his current

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address, and that failure to provide the court and opposing counsel with an up-to-date

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address at which he can be served and contacted may also result in the dismissal of this

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case.

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Dated this 15th day of November, 2011.

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______________________________________
Peggy A. Leen
United States Magistrate Judge

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