UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
January 15, 2013
CITY OF PORTERVILLE, ET AL. , DEFENDANTS.
The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL
Currently before the Court is plaintiff John Duran's ("Plaintiff") motion to compel production of documents ("Plaintiff's Motion") (Doc. 20). Specifically, Plaintiff seeks to compel the retainer agreement between Defendants and the law firm of Nelson and Rozier. *fn1 For the reasons that follow, Plaintiff's Motion is DENIED.
Plaintiff's Motion is procedurally deficient for the following reasons: (1) Plaintiff's Motion is premature under the Federal Rules of Civil Procedure because the parties have not participated in a Rule 26(f) scheduling conference; (2) Plaintiff's Motion is premature while a motion to dismiss is pending; and (3) Plaintiff's Motion does not comply with this Court's Local Rules.
A. Plaintiff's Motion is Premature Under the Federal Rules of Civil Procedure
"Under FRCP 26(d)(1), discovery is not permitted without a court order prior to a conference between the parties as required by FRCP 26(f) . . . ." AF Holdings LLC v. DOES 1-96, 2011 WL 4502413 (N.D. Cal. 2011); See also, Fed. R. Civ. P. 26(d)(1) ("A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.")
"By its express terms, Rule 26(d) bars discovery until after the parties have conferred about a discovery plan as directed by Rule 26(f)." Riley v. Walgreen Co. , 233 F.R.D. 496, 498 (S.D. Tex. 2005). "Rule 26(d)'s proscription sweeps broadly: not only may a party not 'serve' discovery, it may not even 'seek' discovery from any source until after the Rule 26(f) conference." Id . at 499. *fn2
A Rule 26(f) scheduling conference has not been held, and discovery is not yet open. See Xcentric Ventures, LLC v. Richeson, 2010 WL 5276950 (D. Ariz. 2010) (holding that prior to a Rule 26(f) conference, a request for discovery was propounded "before the Federal Rules of Civil Procedure permitted [the plaintiff] to do so.") Accordingly, Plaintiff's efforts to obtain discovery, formally or informally, are premature. By extension, Plaintiff Motion to compel this information is also premature.
B. Plaintiff's Motion is Premature Due to Defendant's Pending Motion to Dismiss
When a case is still in the pleadings stage and a motion to
dismiss is pending, a motion to compel discovery is considered
premature absent extraordinary circumstances. See, e.g.,
v. Barra, 2012 WL 4900203 (S.D. Cal. 2012) ("Given that
this case is still in the pleading stage, the Court finds that
merits-based discovery is inappropriate at this time, as its relevancy
is outweighed by the burden and expense of production");
Thomas v. Felker, 2011 WL 2225133 (E.D. Cal. 2011)
("Plaintiff is apprised that any motion to compel will be found
the court has issued its final ruling on the motion to dismiss");
Duggan v. Astrue, 2010 WL 2035285 (N.D. Cal. 2010)
(finding that a motion to compel was "premature" when a motion to
dismiss was pending and the case was still in the pleadings
Defendant's filed a motion to dismiss on December 21, 2012, which is set for a hearing on January 21, 2013. (Doc. 12.) Until this motion is resolved, the operative pleadings and issues have not properly been framed. Thus, discovery concerning the merits of Plaintiff's pleadings is premature.
C. Plaintiff's Motion Does Not Comply With the Court's Local Rules
Local Rule 251 provides the procedural steps to be taken for motions dealing with discovery matters. The default rule is that a motion to compel discovery is to be filed twenty-one (21) calendar days before any noticed hearing on the motion. LR. 251(a). This default rule also requires the parties submit a joint statement concerning the discovery dispute seven (7) calendar days prior to the noticed hearing. *fn3 Id.
Plaintiff filed his Motion on January 10, 2013, and noticed the
hearing for January 21, 2013. (Doc. 20.) Thus, Plaintiff failed to
provide sufficient notice for his Motion. *fn4
Moreover, the parties did not submit a joint statement as
required by L.R. 251(c), and Plaintiff did not demonstrate good cause
for his failure to procure a joint statement as provided in L.R.
251(d). Accordingly, even if Plaintiff's Motion was otherwise ripe for
determination, the Court would deny the Motion for Plaintiff's failure
to comply with the Court's Local Rules.
Based on the foregoing, Plaintiff's Motion to Compel Production of Documents is DENIED WITHOUT PREJUDICE. Plaintiff is apprised that any motion to compel will be found premature until the court has issued its final ruling on the motion to dismiss, and the parties have participated in a Rule 26(f) scheduling conference.
IT IS SO ORDERED.