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Darryl L. Hubbard v. Hougland

March 13, 2013

DARRYL L. HUBBARD, PLAINTIFF,
v.
HOUGLAND, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Allison Claire United States Magistrate Judge

ORDER

Plaintiff, a former state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's January 22, 2013 motion to compel. Also pending is plaintiff's February 22, 2013 "motion for judgment in default of defense."

RELEVANT BACKGROUND

Plaintiff initiated this action on June 10, 2011 and is proceeding on an Eighth Amendment claim against defendants Smith, Clark, Goulding, and Thompson.*fn1

On July 10, 2012, a discovery and scheduling order issued. ECF No. 32. The paragraph setting the discovery deadline is reproduced here in its entirety: "The parties may conduct discovery until November 2, 2012. Any motions necessary to compel discovery shall be filed by that date. All requests for discovery pursuant to Fed. R. Civ. P. 31, 33, 34 or 36 shall be served not later than sixty days prior to that date."

On November 29, 2012, a modified discovery and scheduling order issued. ECF No. 45. The paragraph modifying the discovery deadline is reproduced here in its entirety: "The discovery deadline, currently expired, is hereby continued to January 25, 2013. Any motions necessary to compel discovery shall be filed by that date." Id. Because the order was issued 57 days before the discovery deadline, the court did not include the language from the previous scheduling order that discovery requests be served at least sixty days prior to the discovery deadline.

On December 7, 2012, plaintiff served his discovery requests on defendants.

Plaintiff does not identify what discovery he propounded.

When plaintiff failed to receive a response from defendants to the discovery requests, he mailed them a letter for meet and confer purposes. Not receiving a response to that letter, plaintiff filed the instant motion on January 22, 2013.

On February 7, 2013, the court directed defendants to file a response to plaintiff's motion within seven days from the date of the order. Defendants filed their tardy opposition to plaintiff's motion on February 22, 2013, well over the seven-day period directed by the court and over the 21-day period directed by Local Rule. See Local Rule 230(l).

On February 22, 2013, plaintiff filed a motion for default judgment.

DISCUSSION

A. Motion to Compel

In his motion to compel, plaintiff seeks an order directing ...


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