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Paul Bashkin v. San Diego County et al.

April 19, 2011


The opinion of the court was delivered by: Hon. William V. Gallo U.S. Magistrate Judge


Plaintiff, proceeding in pro per, moves the Court for an order to re-open discovery on a limited basis so that he may explore five enumerated areas. For the reasons stated below, Plaintiff's motion is DENIED.


Filed on August 8, 2008, this case has involved a long series of hard-fought discovery disputes, with both sides at times behaving below the standard which this Court expects. Although the deadline to conduct all discovery passed on December 7, 2009, (Doc. No. 16 at 1), these disputes nonetheless persisted and culminated in the issuance of a 61-page Order on January 13, 2011, which the Court expected would be the end of the disputes. (See Doc. No. 83.) But Plaintiff persists. Plaintiff's present motion comes late in the case, with the final pretrial conference set for May 6, 2011---barely over one month from the date he filed this motion. (Doc. No. 91.)


Federal Rule of Civil Procedure 16 provides a stringent standard whereby the party who seeks to amend the Court's scheduling order must show "good cause" why the Court should set aside or extend a discovery deadline. See Fed. R. Civ. P. 16(b)(4). The scheduling order may only be amended with the Court's consent. Id.

Under Rule 16(b)'s good cause standard, the Court's primary focus is on the movant's diligence in seeking the amendment. Johnson v. Mammoth Recreations, 975 F.2d 604, 609 (9th Cir. 1992). "Good cause" exists if a party can prove the schedule "cannot reasonably be met despite the diligence of the party seeking the extension." Id. (citing Fed. R. Civ. P. 16 advisory committee's notes (1983 amendment)). "[C]arelessness is not compatible with a finding of diligence and offers no reason for a grant of relief. Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification." Id. (citations omitted). If the party seeking modification was not diligent in his or her pretrial preparations, the inquiry should end there and the measure of relief sought from the Court should not be granted. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). The party seeking to continue or extend the deadlines bears the burden of proving good cause. See id.; Johnson, 975 F.2d at 608.


A. Special Interrogatory On Plaintiff's Second Claim

Plaintiff first seeks to propound one special interrogatory to Defendant Kluge. (Doc. No. 92-2 at 20.) That interrogatory relates to Plaintiff's second claim for violation of 28 U.S.C. Section 1985. As Plaintiff correctly recounts, Defendants won summary judgment on this claim in early 2010, and Plaintiff was allowed to amend his Complaint to reinstate this claim in late 2010. The claim's presence in this action became final on January 17, 2011, when Defendants' second motion to dismiss was denied. In the meantime, Plaintiff explains, he was unable to propound discovery on this claim because it had been dismissed from the suit at the time when he propounded interrogatories to Kluge.*fn1 However, as explained below, the Court denies Plaintiff's request for leave to propound the proposed interrogatory.

1. The Potential For Significant Delay

The first two factors that inform the Court's ruling include the fact that this case is swiftly approaching its 3-year anniversary, and allowing further discovery will impact Judge Battaglia's final pretrial conference date. The Court has had ample experience with how discovery in this case has proceeded, which experience informs the Court on how future discovery will proceed. Based on the Court's past experience with both sides in this action, the Court is certain that allowing the requested discovery at this late stage will significantly delay this case. Based on the parties' proven history, Plaintiff will propound his interrogatory, Defen- dants will provide either a half-answer or an adequate answer, Plaintiff will pick apart every minute detail of Defendants' response and file an outraged discovery dispute even if the response is wholly adequate, and the Court will referee a dispute process that will likely take months. All of this will then be followed by motions for reconsideration and follow-up disputes. As a result, the pretrial conference and ensuing final resolution of this case will very likely be pushed into next year.

However, the Court emphasizes that this delay is not the main driving force behind its ruling. The overwhelming bases for the Courts ruling are (1) the nature of the proposed interrogatory and (2) Plaintiff's inability to meet his burden under Rule 16(b).

2. Nature of the Proposed Interrogatory

The Court has reviewed Plaintiff's proposed interrogatory and concludes that, as crafted, it will be of little to no additional utility in this case given the nature of both the interrogatory and the Answer. Plaintiff seeks a wide range of information relating to the Answer's denial of any material allegation or assertion of an affirmative defense. (Doc. No. 92-2 at 20.) However, the short Answer contains only general denials and standard affirmative defenses that are equally applicable to all of Plaintiff's claim, not just his second ...

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