The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge United States District Court
DENYING PLAINTIFF'S EX PARTE MOTION TO EXTEND DISCOVERY CUTOFF [Doc.
No. 85] REQUIRING DEFENSE COUNSEL TO PROVIDE ADDITIONAL DISCOVERY
On September 10, 2008, Marcus Bovarie (Plaintiff), a California prisoner proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 civil rights action complaining of deliberate indifference to his medical needs. Presently before the Court is Plaintiff's Second Ex Parte Request to Extend Discovery. [Docket No. 85.]
On April 26, 2010, the Court issued a Scheduling Order Regulating Discovery and Other Pre-Trial Proceedings. [Docket No. 64, "Scheduling Order."] The Scheduling Order provides, in relevant
All discovery, including experts, shall be completed by all parties on or before November 29, 2010. "Completed" means that all discovery under Rules 30-36 of the Federal Rules of Civil Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient period of time in advance of the cut-off date, so that it may be completed by the cut-off date, taking into account the times for service, notice and response as set forth in the Federal Rules of Civil Procedure. [Scheduling Order ¶ 6.]
On October 15, 2010, Plaintiff filed an ex parte application to extend the time to complete discovery. [Docket No. 72.] Plaintiff sought to extend the discovery cutoff by 180 days, claiming that the amount of outstanding discovery was just cause for such a long extension. Defendants did not oppose the application, instead seeking an additional 60 days to respond to outstanding discovery and to extend the discovery period for at least 120 days. On November 2, 2010, the Court granted in part and denied in part Plaintiff's request. [Docket No. 78.] The Court ordered Defendants to respond to all outstanding discovery no later than December 3, 2010 and extended discovery for 90 days, to February 28, 2010. The court specifically found the requested 120-180 day extension to be "excessive." [Id.] On February 4, 2011, Plaintiff filed the second ex parte motion to extend the discovery cutoff currently before the Court. [Docket No. 85.] Defendants filed a statement of Non-Opposition to the motion, reasoning that if Plaintiff propounds discovery on the California Department of Corrections and Rehabilitation ("CDCR"), the discovery process will be prolonged because the CDCR is likely to object and move to quash the subpoenas.
For the following reasons, the second ex parte request to extend the discovery cutoff is DENIED.
In general, the pretrial scheduling order can only be modified "upon a showing of good cause." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607, 608 (9th Cir.1992), citing Fed.R.Civ.P. see also Docket No. 68 (denying request to extend time to amend pleadings.) The most relevant factor in determining whether good cause exists is whether the party requesting an extension of time can show that the existing deadlines could not be met despite the party's diligence. Zivkovic v. Southern California Edison Company, 302 F.3d 1080, 1087 (9th Cir. 2002) (internal citations omitted). If the party was not diligent, the inquiry should end and a motion for modification should be denied. Id
The primary question before the Court is whether Plaintiff has been diligent in attempting to meet the current deadline. Plaintiff does little to address the question before the court: whether he has been diligent in pursuing discovery. The only discovery that Plaintiff has informed the court about was propounded between August 19, 2 010 and September 14, 2010. (Motion to Compel at p. 1). This action was filed on September 10, 2008. The Scheduling Order setting the close of discovery for November 29, 2010 was filed on April 26, 2010. Plaintiff does nothing to explain why he waited until at least half of the discovery period had passed to issue this discovery. Given that the case had already been pending for over a year and a half when the Scheduling Order issued, this shows a lack of diligence. In light of Plaintiff's position as an incarcerated pro se litigant, the Court granted the first extension of discovery despite this lack of diligence. The Court put Plaintiff on notice, however, that additional time would be "excessive."
Plaintiff states "he has done all he can with the enlargement [the 90 days granted by the court] but the complexity of discovery, the need of additional discovery and conflicting legal scheduals [sic] force Plaintiff to request additional time." [Ex Parte Request at 1.] Plaintiff explains that he has filed two motions to request subpoenas and a motion to compel since November and plans to file a second motion to compel soon, but points to no discovery actually propounded during this time. [Id.] Plaintiff then states that he has an unrelated §1983 action in the pre-trial stage that has required numerous filings. Plaintiff continues: "actually, this other case will require an enlargement of time itself as Plaintiff will have to go out to court to prosecute." [Id.]
Plaintiff's First Request for Subpoenas was filed on December 30, 2010 and Granted on January 19, 2011. [Docket Nos. 79-80.] The Order explained: "Pursuant to Federal Rules of Civil Procedure 45(a)(3), the Clerk of Court 'must issue a subpoena, signed but otherwise in blank, to a party who requests it.' FED.R.CIV.P. 45(a)(3)." The Order and subpoenas were mailed on January 19, 2010. [Docket No. 80.] On January 24, 2011, presumably unaware of the Order granting the first request, Plaintiff filed a second request for subpoenas. This Request was granted on February 9, 2011. [Docket No. 87.]
The unrelated action to which Plaintiff refers is Bovarie v. Woodford, 06 CV 687 JLS BGS (the "06 action"), a separate action under §1983 alleging a violation of Plaintiff's right to access to the *fn1 Plaintiff posits that "there will be a good month and a half to two months (and maybe longer)" where he will be unable to receive or file any documents because he will be in trial in the 06 action. [Id.
Plaintiff claims that he has been had to file numerous documents in relation to the '06 action. A review of the docket in the 06 action reveals the following filings:
1. Pretrial Disclosures consisting of 8 pages on January 7, 2011 [Docket No. 133];
2. Amendment to the Pretrial Disclosures on February 1, 2011, consisting of an additional 3 pages. [Docket No. 137];
3. Memorandum of Fact and Contentions of Law, consisting of 20 pages [Docket No. 139] filed on February 1, 2011;
4. Meeting of Counsel, consisting of 6 pages plus photocopied exhibits also filed on February 1, 2011. [Docket No. 141.];
Plaintiff also attempted to file: 1) proposed pretrial order [Docket No. 145, rejected because it was already filed] on February 3, 2011; 2) petition for Writ of Habeas Corpus Ad Testificandum [Docket No. 146, rejected for multiple reasons] on February 7, 2011, 3) Final Pretrial Conference Statements and Additions to Proposed Order [Docket No. 149, rejected as untimely] on February 14, 2011; and 4) Additional Final Pretrial ...