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Mario Williams v. Jason T. Huffman

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 7, 2012

MARIO WILLIAMS, PLAINTIFF,
v.
JASON T. HUFFMAN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

On December 1, 2011,*fn1 plaintiff filed a motion to compel defendants to respond to discovery requests propounded on October 14, 2011. On January 12, 2012, the court ordered defendants to show cause why plaintiff's motion should not be granted based on defendants' failure to file an opposition to the motion. On January 13, 2012, defendants filed a response to the order to show cause, and an opposition to the motion to compel. Good cause appearing, the order to show cause is discharged.

Defendants contend that under the court's scheduling order, discovery responses are due 45 days after the date of service; thus, their responses were not due until November 28, 2011. Defendants provide a declaration of service by mail indicating plaintiff was served with defendants' discovery responses on November 28, 2011. (Dkt. No. 55-3 at 21.)

In this court's October 4, 2011 discovery and scheduling order, the court ordered that "[r]esponses to written discovery requests shall be due forty-five days after the request is served." (Dkt. No. 31 at 5.) The discovery requests at issue here were propounded on October 14, 2011. Forty-five days from October 14, 2011, is November 28, 2011. The response deadline is further extended by three days to allow for service by mail. See Fed. R. Civ. P. 6(d); 5(b)(2)(C). Thus, the three days for mailing extended the deadline through December 1, 2011.

Therefore, plaintiff's December 1, 2011 motion to compel was prematurely filed. In his motion, plaintiff claims defendants failed to respond. However, since the filing of defendants' opposition, plaintiff has not filed a reply, or otherwise responded, to defendants' opposition.

Accordingly, IT IS HEREBY ORDERED that:

1. The January 12, 2012 order to show cause is discharged; and

2. Plaintiff's December 5, 2011 motion to compel (dkt. no. 41) is denied without prejudice.


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