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Perez v. Sisto

August 25, 2009

JOSE MANUEL PEREZ, PLAINTIFF,
v.
D.K. SISTO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

Introduction

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are: 1) plaintiff's motion for a default judgment, February 5, 2009; 2) plaintiff's "request for certificate [sic] Fed. R. Civ. P. 54(b)," filed on May 15, 2009; and 3) plaintiff's "notice to defendants of plaintiff's proposed ex parte order not to give deposition," construed as a motion to quash plaintiff's deposition subpoena.

Motion for Default

By Order, filed on February 19, 2009, the January 8, 2009, Findings and Recommendations, 2009, granting defendant's motion to dismiss and dismissed defendants Durfey, Flete, Orrick, Roszko and Sandy from this action with the action to proceed only as to defendants who had previously answered (defendants Cantu, Cortez and Williams). As to defendant Lozano, in the Order, filed January 8, 2009,*fn1 he/she was directed to show cause within ten days why he or she should not be found in default for failing to comply with Fed. R. Civ. P. 4(d)(3), when a waiver of service had been filed as to this defendant on February 8, 2008 (docket # 14), but no response on his/her behalf to the amended complaint had yet been filed. By Order, filed on January 26, 2009, this court found defendants' counsel's timely response, on January 20, 2009, to have discharged the show cause, did not find defendant Lozano to be in default as counsel ascribed the omission/oversight entirely to himself, noting a voluminous caseload and that defendant Lozano's name had not been entered in the case management software when counsel began working on the defendants' responses;*fn2 the court also deemed the proposed answer submitted with defendant's response to be the answer filed on behalf of defendant Lozano. Although plaintiff does not appear to have raised the issue of defendant Lozano's failure to have responded prior to the court's addressing the matter, plaintiff has subsequently claimed to be prejudiced thereby.*fn3 Plaintiff asks that defendant Lozano be found in default or that plaintiff be transferred back to Solano State Prison to conduct a "proper investigation." The court having previously found defendant Lozano not to be in default, this request (and its inapposite alternative), will be denied.

Request for Judgment under Fed. R. Civ. P. 54(b)

Plaintiff filed an appeal of the February 19, 2009, Order, noted above, to the Ninth Circuit on March 5, 2009, which interlocutory appeal was dismissed for lack of jurisdiction by the Ninth Circuit on April 29, 2009, with a formal mandate, giving effect to that judgment filed in this case docket on May 21, 2009. See docket # 44 & # 49. Plaintiff asks this court to enter judgment, pursuant to Fed. R. Civ. 54(b), as to the order dismissing defendants Durfey, Flete, Orrick, Roszko and Sandy, so that plaintiff may appeal their dismissal as a final judgment, even though this case still proceeds as to four other defendants.

Under Rule 54(b):

When an action presents more than one claim for relief - - -whether as a claim, counterclaim, cross-claim, or third-party claim - - -or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.

As very recently noted in a case within this district: There exists "a long-settled and prudential policy against the scattershot disposition of litigation," and "entry of judgment under [Rule 54(b)] should not be indulged as a matter of routine or as a magnanimous accommodation to lawyers or litigants." Spiegel v. Trustees of Tufts College, 843 F.2d 38, 42 (9th Cir.1988) (citations omitted). "Judgments under Rule 54(b) must be reserved for the unusual case in which the costs and risks of multiplying the number of proceedings and of overcrowding the appellate docket are outbalanced by the pressing needs of the litigants for an early and separate judgment as to some claims or parties." Morrison-Knudsen Co., Inc. v. Archer, 655 F.2d 962, 965 (9th Cir.1981).

Johnson v. Dovey, 2009 WL 2413752 *1 (E.D. Cal. Aug. 5, 2009).

Plaintiff contends, in conclusory fashion, that "there is no just reason for delay and final judgment should be entered" to permit him to appeal the February 19, 2009, Order. Request, pp. 1-2. Plaintiff offers no explanation as to why he should be permitted to proceed to appeal a ruling dismissing some of the defendants, while the action proceeds as to other defendants, and how doing so is unlikely to result in parsed claims and possible multiple appeals in this single action. Plaintiff's request for a final judgment under Rule 54(b) should be denied.

Request re: Quashing plaintiff's Deposition

Plaintiff contends that defendants Williams, Cantu, Cortez and Lozano did not provide notice of taking plaintiff's deposition within the constraints of the court's Scheduling Order, filed on February 26, 2009 (dkt # 39), setting a discovery deadline of June 5, 2009, stating that discovery requests should not be later than 60 days before the cutoff. Request at dkt # 48, p. 1. Plaintiff protests that he was not served with a notice of taking his deposition until May 15, 2009 (although he does not include a copy) for a June 4, 2009, deposition, and that the notice also requested plaintiff produce certain documents "for inspection and copying." Id., at 1-2. Plaintiff notes that the notice refers to the deposition continuing "from day to day ...


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