Foley v. Arostegui et al

Filing 123

ORDER Granting Plaintiff's 117 Emergency Motion to Reopen Discovery and 120 Emergency Motion to Vacate Trial Date. The Calendar Call set for 2/6/2019 and the Jury Trial set for 2/11/2019 are VACATED. Status Conference set for 2/19/2019 at 02:00 PM in LV Courtroom 7C before Judge Richard F. Boulware II. Signed by Judge Richard F. Boulware, II on 1/29/2019. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MICHAEL FOLEY,

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Plaintiff,

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Case No. 2:14-cv-00094-RFB-NJK
ORDER

v.
LOREA AROSTEGUI,

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Defendant.

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I.

Before the Court is Plaintiff’s Emergency Motion to Reopen Discovery and Vacate Trial

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INTRODUCTION

Date. ECF Nos. 117, 120. For the reasons stated below, the Court grants the motion.

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II.

BACKGROUND

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On March 10, 2014, Plaintiff Michael Foley filed a civil rights lawsuit against Clark

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County and Lorea Arostegui, Georgina Stuart, Deborah Croshaw, Lisa Reese, and Lisa Ruiz-Lee,

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all of whom are Clark County Family Services employees. ECF No. 5. 2. Plaintiff alleged the

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following causes of action: (1) First Amendment claim regarding the right to petition the

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government for redress of grievances; (2) Fourth Amendment claim arising from an unlawful

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search and seizure; (3) Due Process and Equal Protection claims under the Fifth and Fourteenth

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Amendments; (4) Conspiracy to Violate the Right to Life, Liberty, Property, Due Process and

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Equal Protection of the Laws; and (5) Intentional Infliction of Emotional Distress. Discovery

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began on September 23, 2016 and concluded on December 22, 2016. Following Defendants’

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Motion for Summary Judgment, Plaintiff’s Due Process claim against Defendant Clark County

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and First Amendment retaliation claim against Defendant Arostegui remain. ECF No. 78.

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On January 22, 2019, Plaintiff, who had previously been representing himself pro se,

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retained the Lewis Roca Rothgerber Christie, LLP law firm to assist him on a pro bono basis.

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Plaintiff filed the instant Emergency Motion to Reopen Discovery and Vacate Trial Date on

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January 24, 2019. ECF No. 117. Defendants responded on January 28, 2019. ECF No. 121. A

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jury trial is currently scheduled for February 11, 2019. ECF No. 113.

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III.

LEGAL STANDARD

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Plaintiff seeks a modification of the scheduling order, which “may be modified only for

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good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The Ninth Circuit has

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instructed

district

courts

to

consider:

“1)

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the request is opposed, 3) whether the non-moving party would be prejudiced, 4) whether the

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moving party was diligent in obtaining discovery within the guidelines established by the court, 5)

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the foreseeability of the need for additional discovery in light of the time allowed for discovery by

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the district court, and 6) the likelihood that the discovery will lead to relevant evidence.” City of

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Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1066 (9th Cir. 2017).

whether trial is imminent,

2)

whether

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IV.

DISCUSSION
The Court has considered the relevant factors and the record and finds that there is good

cause to vacate the trial and reopen discovery on a limited basis in this case.

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The Court does not find that the Defendant would suffer undue or unfair prejudice if the

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Court were to grant limited discovery. The Court intends to restrict any reopened discovery to the

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central events and conduct that form the basis of Plaintiff’s surviving claims. Much of this

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information would have been and presumably was investigated and disclosed by Defendant

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pursuant to its initial disclosure obligations. Indeed, the very documents that Defendant proffered

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in connection with its Motion for Summary Judgment (ECF No. 67) relate to the nature of the

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discovery that the Court intends to permit in this case.

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Additionally, the Court’s primary consideration is the diligence of the party seeking

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amendment. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). The

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Court finds that Plaintiff has diligently pursued this action to the best of his ability while acting

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pro se. Plaintiff diligently defended against motions to dismiss and for summary judgment and

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conducted other motions practice. Plaintiff requested the appointment of counsel earlier in the

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litigation to assist him in more fully participating in discovery and opposing Defendant’s motions.

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Even absent Plaintiff’s informed participation in discovery, two claims survived summary

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judgment, and there is good cause to provide Plaintiff the chance to obtain relevant evidence to

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support these claims now that he has the support of counsel. Moreover, discovery in this case was

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conducted in only a three-month window. Particularly given Plaintiff’s pro se status, the need for

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additional discovery in light of such a short discovery window was reasonably foreseeable.
The Court therefore schedules a status conference to set the parameters for reopening

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discovery.

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IV.

CONCLUSION

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IT IS ORDERED that Plaintiff’s Emergency Motion to Reopen Discovery and Vacate

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Trial Date (ECF Nos. 117, 120) is GRANTED. The Calendar Call set for February 6, 2019 and

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the Jury Trial set for February 11, 2019 are VACATED.

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IT IS FURTHER ORDERED that a status conference is scheduled for February 19, 2019
at 2:00 PM in LV Courtroom 7C before Judge Richard F. Boulware, II.

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DATED: January 29, 2019.

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__________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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