Fernandez v. Baker et al

Filing 376

ORDER granting nunc pro tunc ECF No. 306 Motion to Extend Time; Plaintiff's reply briefs ECF Nos. 325 and 332 are stricken; Motion for District Judge to Reconsider Order ECF Nos. 310 , 317 , and 340 are overruled. Signed by Judge Miranda M. Du on 10/26/2017. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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KEVIN FERNANDEZ,

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Plaintiff,
JAMES GREG COX, et al.,
Defendants.

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ORDER

v.

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Case No. 3:14-cv-00578-MMD-VPC

I.

DISCUSSION

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This Order addresses Plaintiff Kevin Fernandez’s pending objections and motion

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for review of the Magistrate Judge’s orders. (ECF Nos. 310, 317, 340.) Plaintiff’s motion

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for extension of time (ECF No. 306) to file objection to the Magistrate Judge’ order (ECF

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No. 306) is granted nunc pro tunc. LR IB 3-1(a) permits only an objection and a response

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in connection the Magistrate Judge’s pretrial ruling; a reply is only permitted with leave of

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court. Plaintiff filed reply briefs in support of his objections. (ECF Nos. 325, 332.) The

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Court finds that the issues are thoroughly briefed and replies are unnecessary. The Court

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will strike Plaintiff’s reply briefs (ECF No. 325, 332).

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II.

LEGAL STANDARD

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Plaintiff’s objections and motion challenge the Magistrate Judge’s decisions on

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pretrial matters. Magistrate judges are authorized to resolve pretrial matters subject to

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district court review under a “clearly erroneous or contrary to law” standard. 28 U.S.C. §

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636(b)(1)(A); see also Fed. R. Civ. P. 72(a); LR IB 3-1(a) (“A district judge may reconsider

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any pretrial matter referred to a magistrate judge in a civil or criminal case pursuant to LR
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IB 1-3, where it has been shown that the magistrate judge’s ruling is clearly erroneous or

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contrary to law.”). A magistrate judge’s order is “clearly erroneous” if the court has “a

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definite and firm conviction that a mistake has been committed.” See United States v.

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U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Burdick v. Comm’r IRS, 979 F.2d 1369,

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1370 (9th Cir. 1992). “An order is contrary to law when it fails to apply or misapplies

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relevant statutes, case law, or rules of procedure.” Jadwin v. Cty. of Kern, 767 F. Supp.

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2d 1069, 1110-11 (E.D. Cal. 2011) (quoting DeFazio v. Wallis, 459 F. Supp. 2d 159, 163

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(E.D.N.Y. 2006)). When reviewing the order, however, the magistrate judge “is afforded

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broad discretion, which will be overruled only if abused.” Columbia Pictures, Inc. v.

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Bunnell, 245 F.R.D. 443, 446 (C.D. Cal. 2007). The district judge “may not simply

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substitute its judgment” for that of the magistrate judge. Grimes v. City and County of San

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Francisco, 951 F.2d 236, 241 (9th Cir. 1991) (citing United States v. BNS, Inc., 858 F.2d

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456, 464 (9th Cir. 1988)).

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III.

OBJECTION TO MAGISTRATE JUDGE’S ORDER (ECF No. 310)

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After a hearing, the Magistrate Judge granted Defendants’ motion to strike Brian

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E. Pape, Ph.D. (“Dr. Pape”) as an expert witness (ECF No. 253). (ECF No. 302 at 1.) Dr.

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Pape’s declaration was disclosed about three months after close of discovery and in

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connection with Plaintiff’s reply in support of his motion to compel discovery. (ECF No.

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253 at 4; ECF No. 245 at 28-37.) The Magistrate Judge agreed with Defendants that Dr.

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Pape’s declaration was “untimely [disclosed], procedurally deficient, and substantially

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irrelevant.” (Id.) The Magistrate Judge denied as moot Plaintiff’s motion for order waiving

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the requirement of the expert report, or, in the alternative, to modify the scheduling order

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(ECF No. 254) (“Waiver Motion”). (Id.)

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Plaintiff raises numerous arguments in his objection to contend that the Magistrate

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Judge’s ruling is clearly erroneous or contrary to law, including that the Magistrate Judge

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should have granted his Waiver Motion instead of addressing Defendant’s motion first,

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failed to articulate the legal standard upon which she made her ruling, failed to consider

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that Plaintiff’s failure to comply with Fed. R. Civ. P. 26(a)(2) was substantially justified or
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was not the result of willful conduct, failed to consider that Plaintiff timely disclosed his

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expert witness report or to consider granting Plaintiff’s request for an extension as

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articulated in the Waiver Motion, and failed to explain her reasoning, among other

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reasons. (ECF No. 310.)

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First and foremost, the Magistrate Judge did not commit clear error by not

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providing a detailed explanation for her decision because the Magistrate Judge stated

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that she agreed with Defendants.1 Second, in terms of timeliness, Plaintiff argues that LR

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26-1 does not modify Fed. R. Civ. P. 26. (ECF No. 310 at 9.) However, LR 26-1(b)(3)

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states, in pertinent part, that “the deadlines in Fed. R. Civ. P. 26(a)(2)(D) for expert

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disclosures are modified to require that the disclosures be made 60 days before the

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discovery cut-off date and that rebuttal-expert disclosures be made 30 days after the initial

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disclosure of experts.” LR 26-1(b)(3) explicitly modified the expert disclosure deadline in

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Fed. R. Civ. P. 26(a)(2)(D). Third, as Defendants correctly point out, there is no question

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that Dr. Pape’s declaration is deficient in that it failed to include the information

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enumerated under Rule 26(a)(2)(B) for expert witness disclosure. (ECF No. 315 at 6-7.)

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More importantly, the Magistrate Judge correctly found that Dr. Pape’s opinion is

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irrelevant to the claims that survived screening. In particular, this Court already

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determined “that Plaintiff states colorable claims for due process violations and unsafe

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prison conditions because ‘prison officials were giving Plaintiff psychotropic medication

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against his will by mixing the medication into Plaintiff’s food without his knowledge.’” (ECF

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No. 271 at 5 (quoting ECF No. 4 at 6-7).) The Court denied Plaintiff leave to amend to

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assert that there were issues with the handling of the urine sample that produced a

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negative urine test. (Id.) Dr. Pape’s opinions go to the handling and reliability of the urine

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test, which is not probative of the claims in this case.

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1Defendants’

motion thoroughly presented their arguments for exclusion of Dr.
Pape’s opinion. (ECF No. 253.)
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In sum, the Court finds that the Magistrate Judge’s decision to exclude Dr. Pape’s

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opinion is not clearly erroneous or contrary to law. Plaintiff’s objection is therefore

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overruled.

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OBJECTION TO MAGISTRATE JUDGE’S ORDER (ECF NO. 311) REGARDING
MOTION TO COMPEL SUPPLEMENTATION (ECF No. 317)

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Plaintiff argues that the Magistrate Judge committed clear error by failing to

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consider his response to Defendants’ status report which Plaintiff contends does not

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accurately reflect the parties’ stipulations. (ECF No. 317 at 3-4.) The Magistrate Judge’s

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March 24, 2017, order does not reference Plaintiff’s response to the status report. This is

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because Plaintiff’s response to the status report was signed on March 27, 2017, and filed

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on March 31, 2017 (ECF No. 316), six days after the Magistrate Judge issued her March

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24, 2017, order.

IV.

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Plaintiff also objects to the Magistrate Judge’s ruling with respect to categories of

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discovery requests: first request for documents (request nos. 25-29, request nos. 30-33,

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request nos. 45, 48, 49, request nos. 56-58), third request for documents, and fourth

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request for documents. (ECF No. 317. at 5-8.) Having reviewed the Magistrate Judge’s

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ruling on these requests, the Court agrees with her reasoning and finds that her rulings

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are not clearly erroneous or contrary to law. For example, Plaintiff argues that the

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Magistrate Judge committed clear error when she denied the motion to compel

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supplementation based on Defendants’ responses that they are not aware of the

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existence of documents responsive to the particular requests. (ECF No. 317 at 5, 8; ECF

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No. 311 at 1, 3.) However, the Court agrees with the Magistrate Judge that Defendants

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cannot be compelled to produce information that Defendants respond does not exist. As

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another example, Plaintiff argues that the Magistrate Judge committed clear error in

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sustaining Defendants’ objections to certain requests being outside the scope of

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discovery, irrelevant to the claims in this case or protected from disclosure as confidential.

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(ECF No. 317 at 6-8.) The Court disagrees. The Magistrate Judge explained the reasons

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for these findings and this Court cannot find that the Magistrate Judge committed clear

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error.

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V.

MOTION FOR REVIEW OF ORDER (ECF No. 340)

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Plaintiff argues that the Magistrate Judge’s order denying his motion to compel

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supplemental interrogatory responses is clearly erroneous primarily because the

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Magistrate Judge found that Plaintiff has not demonstrated that his requests are

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proportional to the needs of the case. (ECF No. 340.) First and foremost, the Magistrate

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Judge gave several reasons for her ruling—that she sustained Defendants’ objections

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and Plaintiff failed to provide a basis to compel further responses—in addition to finding

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that “plaintiff has not shown that his requests for supplementation are relevant or

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proportional to the needs of the case.” (ECF No. 339 at 1.) Plaintiff cites to the Advisory

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Committee Notes to the 2015 Amendment to Fed. R. Civ. P. 26 to argue that as the party

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seeking discovery he does not bear the burden of proving proportionality. (ECF No. 340

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at 3-4.) However, the same Advisory Committee Notes explain that “[r]estoring the

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proportionality calculation to Rule 26(b)(1) does not change the existing responsibilities

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of the court and the parties to consider proportionality . . .” Because courts must consider

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the proportionality factors, the Magistrate Judge’s decision to consider those factors in

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denying Plaintiff’s motion to compel supplemental responses when Defendants fail to

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raise them is not clearly erroneous or contrary to law.

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VI.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion as they do not affect the outcome of

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Plaintiff’s objections and motion.
It is therefore ordered that Plaintiff’s motion for extension of time (ECF No. 306) is

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granted nunc pro tunc.
It is further ordered that Plaintiff’s reply briefs (ECF No. 325, 332) are stricken.

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It is further ordered that Plaintiff’s objections to the Magistrate Judge’s orders (ECF

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Nos. 310, 317) and motion for review of the Magistrate Judge’s order (ECF No. 340) are

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overruled.

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DATED THIS 26th day of October 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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