The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Previously pending on this court's law and motion calendar for November 10, 2011, was plaintiff's motion to compel, filed October 13, 2011. Defendant was directed to file an opposition which was filed on October 27, 2011. Plaintiff appeared in pro se. Shelley Weger appeared for defendant. Having now heard oral argument and reviewed the papers, the court issues the following order.
The operative complaint is the amended complaint which contains two distinct causes of action for (1) breach of contract and (2) lack of procedural due process. Plaintiff sought to initiate a discovery conference with defendant, who responded that because this is an action for review of an administrative record under the Administrative Procedure Act ("APA"), the government is exempt from Rule 26. Plaintiff then filed the instant motion to compel, arguing that his claim for lack of procedural due process is a claim arising under the Constitution and therefore it is not subject to the APA.
The merits of plaintiff's discovery motion will not be addressed at present because the administrative transcript has not yet been filed. Once defendant files the record, plaintiff can review it and then determine what discovery he needs that is not already contained in the record. Should the parties dispute whether plaintiff should receive the discovery he propounds, then a renewed motion may be filed at that time.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion to compel discovery, filed October 13, 2011, is denied without prejudice to its renewal after defendant files the administrative record.
2. Defendant shall file the administrative record by December 1, 2011, and serve a courtesy copy to chambers of the undersigned. No extensions of time will be granted.
3. Plaintiff is granted permission to utilize the court's electronic filing system. Plaintiff is directed to contact the Clerk's Office, Jeremy Donati, at (916) 930-4053, to provide information necessary to set up a user account, if he has not done so already.
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