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Davis v. Calvin

September 10, 2008

CHARLES T. DAVIS, PLAINTIFF,
v.
D. CALVIN, ET AL., DEFENDANTS.



ORDER AND AMENDED SCHEDULE

Plaintiff is a prisoner without counsel suing for alleged civil rights violations. See 42 U.S.C. § 1983. Currently before the court are a variety of motions stemming from plaintiff having walked out on his deposition before it was completed. Defendants Calvin, Rath and Brewer have filed a motion to compel plaintiff to appear for the completion of his deposition and to modify the pretrial scheduling order to extend the discovery cutoff date so as to accommodate that request. They also seek an extension of the law and motion cutoff date because the delay in plaintiff's deposition has necessarily delayed the preparation of a summary judgment motion.*fn1

Plaintiff has opposed these motions and has separately moved for a protective order pursuant to Fed. R. Civ. P. 26(c). He also seeks an order modifying the schedule so that he can complete discovery. As explained below, defendants' motions must be granted and plaintiff's request and motions must be denied.

I. Facts

This action proceeds on the claim that defendants Calvin, Brewer and Rath searched his cell in retaliation for plaintiff having filed a grievance against defendant Calvin. On April 8, 2008, the court issued a discovery and scheduling order. Plaintiff has filed requests for subpoenas so that he can obtain discovery from non-parties and to take depositions of non-parties by written questions. On July 7, 2008, defendants began to take plaintiff's deposition. Defendants assert that plaintiff refused to answer questions about an issue that was central to plaintiff's claims against the other six defendants in this case, i.e., plaintiff's alleged fecal incontinence. Defs.' July 14, 2008, Mot. to Comp., at 3-4. Plaintiff also refused to answer questions about the identities of witnesses to the allegedly retaliatory cell search by defendants Calvin, Rath and Brewer. Id., at 4. Defendants' counsel thus contacted this court in an attempt to resolve the discovery dispute. Id., at 3. Plaintiff initially agreed to have the court resolve the problem, but then changed his mind and left the deposition. Id., at 4-5. Plaintiff left about four hours into the deposition. Id., 4. Thus, on July 14, 2008, defendants filed a motion to compel plaintiff to appear for the completion of the deposition. Discovery closed on July 18, 2008, and dispositive motions must be filed no later than September 12, 2008.

II. Motions to Modify the Schedule

Defendants seek modification of the April 8, 2008, schedule to permit them to complete plaintiff's deposition and to vacate the date by which dispositive motions must be filed. Plaintiff seeks an order modifying the date by which discovery must be completed in order to file motions to compel.

A. Standards

A schedule may be modified upon a showing of good cause. Fed. R. Civ. P. 16(b). Good cause exists when the moving party demonstrates he cannot meet the deadline despite exercising due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).

B. Analysis

1. Defendants' Motion

The court first considers whether the time for discovery should be modified. Pursuant to the schedule in this case, discovery closed on July 18, 2008. As discussed above, plaintiff refused to answer questions about the identity of witnesses to the events giving rise to plaintiff's claims. Defendants began plaintiff's deposition on July 5, 2008, and when he refused to answer questions, they attempted to contact the court. Faced with defendants' persistence, plaintiff abruptly left the deposition. Thus, on July 14, 2008, defendants filed a motion to compel plaintiff to appear so that defendants could complete the deposition. They argue that to conduct the required discovery, the court must re-open discovery for the limited purpose of permitting them to have this opportunity. The information defendants seek, i.e., witness identities, could very well lead to witnesses who would provide affidavits in support of a motion for summary judgment. It therefore is within the scope of discovery. See Fed. R. Civ. P. 26(b)(1). Defendants timely attempted to complete plaintiff's deposition on July 5, 2008, and had plaintiff cooperated they would have completed the deposition on that date. Discovery closed on July 18. It is unrealistic to believe that the court could have resolved a motion to compel in time for defendants to have re-noticed and taken the balance of plaintiff's deposition before discovery closed. Thus, defendants have acted diligently with respect to plaintiff's deposition. The schedule must be modified to permit the instant motion, and if granted, to completed the limited discovery that they seek.

For similar reasons, addition time must be permitted for the filing of defendants' dispositive motions. Dispositive motions were to have been filed no later than September 12, 2008. Defendants Calvin, Rath and Brewer assert that in order to file a comprehensive motion for summary judgment, they must have an opportunity to complete plaintiff's deposition and any discovery that reasonably flows from that testimony. Defendants cannot know whether they can locate witnesses who could provide affidavits unless and until plaintiff answers their questions. Defendants correctly assert that they could not do this until the court resolved their July 14, 2008, motion. They were diligent in attempting to resolve the discovery dispute both during and after the disposition. However, because of delay in resolving the motion to compel, it was impossible for defendants Calvin, Rath and Brewer timely to submit a dispositive motion. The motion to modify the schedule must be granted.

2. Plaintiff's Motion to Extend Time

As noted above, plaintiff also seeks an order permitting him to file a motion to compel after the discovery cutoff dated of July 18, 2008. He filed a motion to compel on August 1, 2008.*fn2 Plaintiff's attachment shows that defendant Rath served his response on June 11, 2008. Plaintiff does not mention this fact in his motion to modify the schedule. Rather, he asserts that the court's failure to rule on his motion to take the deposition of a non-party has prevented him from completing discovery. Once the court rules on this motion, he argues, he will need to file a motion to compel. This argument suggests that plaintiff seeks to multiply the motions in this action. He also asserts that a defendant committed perjury in a discovery response, which necessitates the filing of a motion to compel. Plaintiff does not identify the discovery response which he believes constitutes perjury. Neither does he identify the defendant alleged to have committed perjury. Finally, he does not present any coherent statement as to how this allegation relates to his request to extend time. Again, plaintiff appears simply to want to prolong the litigation. As ...


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