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United States of America v. James O. Molen et al

March 7, 2013

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JAMES O. MOLEN ET AL., DEFENDANTS.



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

ORDER

Defendant James Molen ("defendant") is proceeding without counsel in this action.*fn1 This order addresses defendant's "Motion to Suppress Discovery and Motion for Extension of Time," filed on March 4, 2013.*fn2 (Motion, Dkt. No. 128.) The filing challenges the denial of defendant's motion to compel discovery filed on January 9, 2013 (Dkt. No. 126), seeks to "suppress" the fruits of plaintiff's discovery, and appears to seek to reopen discovery given plaintiff's alleged failure to meet and confer to establish a discovery plan at the outset of this case. (Dkt. No. 128 at 1-5.)

The undersigned takes defendant's motion under submission on the papers and without oral argument, in accordance with Eastern District Local Rule 230(g). The undersigned construes defendant's filing (Dkt. No. 128) as three separate motions: (1) a motion for reconsideration of the undersigned's order (Dkt. No. 127) denying the motion to compel defendant filed on January 9, 2013 (Dkt. No. 126), (2) a motion to compel discovery and request for evidentiary sanctions, and (3) a motion for relief from the scheduling order seeking to reopen discovery in this case. For the reasons described below, the undersigned denies the motion for reconsideration of his order issued January 18, 2013 (Dkt. No. 127), denies the motion to compel discovery and request for sanctions, and orders plaintiff to file an opposition or statement of non-opposition regarding defendant's motion from relief from the scheduling order.

I. DISCUSSION A. Motion For Reconsideration

The undersigned partially construes defendant's filing at Docket Number 128 as a motion for reconsideration of his order at Docket Number 127. E.D. Cal. L.R. 230(k). Pursuant to Eastern District Local Rule 230(j), a motion for reconsideration must state "what new or different facts or circumstances are claimed to exist which did not exist." E.D. Cal. L.R. 230(j)(3)-(4).

On January 9, 2013, defendant filed a document styled as a "Joint Disagreement Notice Of Meet And Confer Plan For Discovery." (Dkt. No. 126.) The undersigned construed this as a motion to compel discovery subject to the requirements of Eastern District Local Rule 251, and denied it for failure to comply with that rule. (Order issued Jan. 18, 2013, Dkt. No. 127.) The undersigned also denied that motion on the alternative basis that it was brought outside the discovery period in this case. (Id.)

As defendant's pending motion accurately states, the undersigned's prior order referenced the discovery completion date from the original Scheduling Order (Dkt. No. 76 (stating discovery completion date of "October 4, 2012"), rather than the amended discovery completion date of "January 7, 2013," reflected in the undersigned's order granting defendant's unopposed motion to modify the scheduling order. (Dkt. No. 110 ¶ 2(b) (modifying Dkt. No. 76 and setting a discovery completion date of January 7, 2013).)

Regardless, however, defendant's discovery motion was still untimely under the amended discovery completion date of January 7, 2013. Given that defendant's motion to compel (Dkt. No. 126) was filed on January 9, 2013, two days after the amended discovery completion date of January 7, 2013, defendant's motion was still filed after the applicable discovery completion deadline and was properly denied for the same reasons stated in the undersigned's order of January 18, 2013 (Dkt. No. 127). Accordingly, defendant's request for reconsideration of that order is denied.

B. Motion To Compel And Request For Sanctions The undersigned partially construes defendant's filing at Docket Number 128 as a motion to compel additional discovery from plaintiff, and as a request for evidentiary sanctions for alleged discovery misconduct by plaintiff. Defendant argues that all discovery that has occurred to date has been improper and should be "suppressed," given plaintiff's alleged failure to meet and confer to establish a discovery plan at the outset of this case. (Dkt. No. 128 at 3-4 ("Because the Plaintiff refused to meet and confer . . . the Discovery process was halted and never authorized, and is disallowed . . . .").)

Previously, defendant has completed several filings styled as "Motions to Compel" (e.g., Dkt. Nos. 48-49), which were denied without prejudice to refiling based upon defendant's noncompliance with the rules governing discovery motions, including Eastern District Local Rule 251. (Orders, Dkt. Nos. 65, 124 (informing defendant that future failures to comply with such rules would result in motions being summarily denied).) Thereafter, defendant filed another motion seeking discovery (Dkt. No. 126), which the undersigned summarily denied for failure to comply with Local Rule 251. (Dkt. No. 127). Defendant's most recent filing (Dkt. No. 128) is a motion regarding discovery rules, discovery, and discovery sanctions, yet it suffers from the same deficiencies described in the undersigned's prior orders. Insofar as it is construed as yet another motion to compel and request for sanctions, it is therefore summarily denied due to those same procedural deficiencies.

As defendant has been informed numerous times in this case, even though he is proceeding without counsel, he is obligated to familiarize himself with the Federal Rules of Civil Procedure and Eastern District of California Local Rules. Pro se litigants are afforded a degree of leniency with respect to their pleadings, but they are nonetheless required to comply with the rules of litigation procedure. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). As he has been advised previously (e.g., Orders, Dkt. Nos. 65, 124), defendant's continued failures to comply with the rules of litigation procedure may subject him to sanctions, and improperly-filed motions may be summarily denied.*fn3

Defendant's motion to compel and request for sanctions is also denied on grounds that it was filed outside the period for discovery in this case. Defendant appears to believe that the motion is timely under the applicable "March 7, 2013" deadline for dispositive motions. (Dkt. No. 128 at 2.) However, defendant's pending filing is not a dispositive motion, it is a motion addressing discovery, and it is therefore subject to the amended discovery deadline of January 7, 2013.

The undersigned notes that defendant's pending motion is largely based upon defendant's misreading of Local Rule 251(b). Defendant believes plaintiff failed to meet the requirements of meeting and conferring under Local Rule 251(b) such that plaintiff's discovery was improperly conducted in violation of the rule. (Dkt. No. 128 at 1-2 ("The Plaintiff was equally required to meet Local Rule 251(b) prior to seeking Discovery[,]" and "[b]ecause the Plaintiff refused to meet and confer through their silence (acquiescence), the Discovery process was halted and never authorized, and is disallowed as per the requirement in Local Rule 251(b).").)

While meeting and conferring with opposing counsel is necessary through all phases of a case, however, the plain text of Local Rule 251(b) requires meeting and conferring and creating a Joint Statement Re: Discovery Disagreement prior to filing a motion regarding discovery. In this case, however, plaintiff has not filed any motions regarding discovery. Accordingly, defendant's argument that plaintiff violated Local Rule 251(b) by allegedly failing to meet and confer before conducting discovery is not well-taken. Likewise, defendant's argument that plaintiff was unfairly allowed "to seek Discovery outside of the Meet and Confer requirement" of Local Rule 251(b) is not well-taken. (Dkt. No. 128 at 3-4 ("If the Defendants are disallowed Discovery because they were not successful at arranging a Meet and Confer dialog with the Plaintiff, then the Plaintiff should equally be required to abandon its pre Meet and Confer Discovery, due to the Plaintiff's non response and disregard to Local Rule 251(b).").) Plaintiff and defendant were both "allowed" to seek discovery during the discovery period of this case, and that period closed on January 7, 2013. (Dkt. No. 110.) ...


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