The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Defendant James Molen ("defendant") is proceeding without counsel.*fn1
A. Stipulated Modifications To Scheduling Order On March 4, 2013, defendant filed a "Motion to Suppress Discovery and Motion for Extension of Time."*fn2 (Motion, Dkt. No. 128.) In an order issued on March 8, 2013, the undersigned denied the bulk of that motion; however, the undersigned partially construed the motion as a request for relief from the scheduling order and ordered plaintiff to file an opposition or statement of non-opposition by March 25, 2013. (Order, Dkt. No. 129.)
On March 8, 2013, plaintiff filed a Statement of Non-Opposition, explaining that while it disagreed with the representations defendant made in his filing, plaintiff did not oppose extending discovery as long as the dispositive motion deadline was also extended. (Statement of Non-Opp'n, Dkt. No. 130.) Plaintiff proposed an amended discovery cutoff date of September 20, 2013, and proposed that all dispositive motions also be filed on or before that same date. (Statement of Non-Opp'n at 2.) Plaintiff also noted that this proposed date would not conflict with the trial schedule set by the assigned United States District Judge. (Judge England's Order, Dkt. No. 122 (resetting trial for February 3, 2014, and resetting the final pretrial conference for December 5, 2013).)
The undersigned permitted defendant to file reply briefing by April 8, 2013. (Order, Dkt. No. 130.) Defendant timely filed reply briefing on April 8, 2013. (Reply, Dkt. No. 131.) Defendant agreed with plaintiff's proposed amended discovery completion date and dispositive motion filing deadline of September 20, 2013. (Id. at 3 ("[T]he period of Discovery, by motion or otherwise, including any dispositive motions should be extended to September 20, 2013, as agreed by the plaintiff.") (emphasis omitted).)
Accordingly, pursuant to the parties' stipulation and good cause appearing, the scheduling order (Dkt. No. 110 ¶ 2(b) (modifying Dkt. No. 76 and setting a discovery completion date of January 7, 2013)) is hereby modified to state an amended discovery completion date of September 20, 2013, and all dispositive motions shall also be filed on or before that same date. The word "completed" in this context means that all discovery shall have been conducted so that all depositions have been taken and any disputes relative to discovery shall also have been resolved by appropriate order by September 20, 2013, and, where discovery has been ordered, the order has been complied with by September 20, 2013. Motions to compel discovery must be noticed on the undersigned's law and motion calendar in accordance with the Local Rules. Counsel (and/or pro se parties) are cautioned to refer to the Local Rules regarding the requirements for properly noticing such motions in advance of the hearing date.
B. Defendant's Request For Reconsideration
Defendant previously argued that plaintiff failed to meet and confer under Local Rule 251(b) such that all of 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).").) The undersigned rejected that argument and briefly explained the rules regarding meeting and conferring in his prior order. (Dkt. No. 129 at 3-5.)
In his reply briefing, defendant now suggests that the court has inconsistently and unfairly applied the rules regarding parties' obligations to "meet and confer" during the course of this litigation.*fn3 (Reply at 2-3.) Specifically, defendant suggests that this court has applied the "meet and confer" requirements to defendant's disfavor and to plaintiff's benefit. This suggestion is based upon defendant's mistaken belief that one overarching "meet and confer" requirement exists, and/or the belief that plaintiff was obligated to further "meet and confer" prior to propounding each set of its discovery requests, apparently as an additional step beyond conferring to establish a general discovery plan. These misunderstandings are based upon defendant's misreadings of Local Rule 251 and Federal Rules of Civil Procedure 26 and 37. Given defendant's continued misunderstanding of the applicable rules, the undersigned will again attempt to clarify those rules for defendant.
There are various separate "meet and confer" obligations that arise at various times during the course of litigation. First, prior to conducting discovery, parties must meet and confer to establish a general discovery plan at the outset of a case. Fed. R. Civ. P. 26(d), (f). Second, as a separate and distinct requirement, after discovery has been propounded parties must also meet and confer to attempt to resolve discovery disputes "without court action" when such disputes arise during the course of discovery. Fed. R. Civ. P. 37(a). Third, if the parties are unable to resolve a particular discovery dispute even after meeting and conferring, the parties must again meet and confer to attempt to narrow the scope of the particular discovery dispute, and to work together to create a Joint Statement Re Discovery Disagreement to better define the scope of the dispute, all as a threshold to the moving party's request for the court's involvement in resolving the discovery dispute. Id.; E.D. Cal. L.R. 251(b)-(d). This meet and confer requirement is separate and distinct from the two already described above. The court will typically not entertain discovery motions filed without supporting documents confirming that the parties have met and conferred in good faith to resolve the dispute. E.D. Cal. L.R. 251(b) (motions filed without such documents "shall not be heard."). Likewise, the court will typically not entertain discovery motions that have been filed without the proper Joint Statement delineating each party's framing of the dispute and the legal authorities each party relies on with respect to the disputed discovery issue. E.D. Cal. L.R. 251(b)-(d).
The undersigned further clarifies these rules insofar as they have applied in this particular case. First, as stated in the undersigned's prior order (Dkt. No. 129 at 6), the parties apparently satisfied the meet and confer requirements of Federal Rule of Civil Procedure 26(d) & (f) when they prepared a joint status report at the outset of this case. Specifically, on May 26, 2011, the parties filed a Joint Scheduling Statement signed by plaintiff and defendant and including representations from plaintiff and defendant. (Joint Scheduling Statement, Dkt. No. 68.) Moreover, the Joint Scheduling Statement included both an itemized "Proposed Discovery Plan -- Rule 26(f)" and an itemized "Proposed Discovery Schedule." (Id. at 3-4.) This filing indicates that the parties properly met and conferred to create a discovery plan prior to engaging in any discovery. Thereafter, pursuant to the court's scheduling order and Federal Rule of Civil Procedure 26(d) & (f), the parties were permitted to begin conducting discovery; no additional "meet and confer" prerequisites were required. Thus, defendant's argument that plaintiff has been permitted to conduct its discovery without properly meeting and conferring is not well-taken.
Second, defendant filed several motions to compel discovery in this
case, each time triggering the requirements of Federal Rule of Civil
Procedure 37(a) and Eastern District Local Rule 251.*fn4
These discovery motions were all denied for procedural
reasons, primarily due to defendant's apparent failures to meet and
confer with plaintiff to resolve the particular discovery
disagreements prior to filing those motions, and failures to file the
motions with the appropriate accompanying Joint Statement, all in
violation of Local Rule 251(b)-(d) and Federal Rule of Civil Procedure
37(a). That the court has repeatedly required defendant to show he
complied with these rules but has not formally required plaintiff to
do so is a function of the fact that defendant is the party who filed
the discovery motions. In other words, while the court has not
formally ordered plaintiff to show that plaintiff has satisfied Local
Rule 251's threshold
requirements, this is simply because in this case it has always been
defendant filing the discovery motions and requesting the court's
involvement, such that it has always been defendant's burden as the
moving party to show satisfaction of the requirements of Local Rule
251. Defendant should rest assured that if plaintiff ever files a
discovery motion in this case, the court will require plaintiff to
make the threshold showing that, as the moving party, it has properly
met and conferred with defendant regarding the discovery dispute and
has otherwise complied with Local Rule 251. Accordingly, defendant's
belief that the court has inconsistently applied the "meet and confer"
rules to plaintiff's advantage is in error. Defendant's belief that
plaintiff was permitted to conduct discovery without properly meeting
and conferring is also in error.
Accordingly, to the extent defendant intended a portion of his reply briefing to serve as a request for reconsideration of the court's orders at Docket Numbers 127 and 129, the ...