United States District Court, N.D. California
1. GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION; 2. VACATING THE COURT'S
JANUARY 3, 2014 ORDER; 3. DIRECTING UNITED STATES MARSHAL TO PERSONALLY SERVE DEFENDANT FRANCIS PURSUANT TO FRCP 4(e)(2);
4. DENYING PLAINTIFF'S MOTION TO COMPEL DISCOVERY; 5. GRANTING DEFENDANTS' REQUEST FOR A SECOND EXTENSION OF TIME TO FILE A DISPOSITIVE MOTION;
6. TO SHOW CAUSE RE: SANCTIONS; AND 7. SETTING BRIEFING SCHEDULE
YVONNE GONZALEZ ROGERS, District Judge.
Plaintiff filed the instant pro se prisoner complaint under 42 U.S.C. § 1983 against Oakland Police Department Officers A. Leal, Francis and M. Ziebrath, who arrested Plaintiff for multiple robbery charges in 2006. Plaintiff alleges that these Defendants used excessive force when they arrested him on August 27, 2006.
In an Order dated February 19, 2013, the Court found that Plaintiff's complaint stated a cognizable claim against Defendants Leal, Francis, and Ziebrath for a Fourth Amendment violation. The Court ordered service of the aforementioned Defendants by sending them request for waiver of service of summons forms. To date, Defendant Francis has not yet been served. The Court has directed Plaintiff to provide Defendant Francis's current address. (Docket No. 24.) However, Plaintiff has not provided the Court with this information. Instead, Plaintiff has filed a "Motion for Reconsideration, " requesting the Court to reconsider its request for him to provide such information and to direct the United States Marshal to serve Defendant Francis. (Docket No. 27.)
Before the Court is the served Defendants' motion for a second extension of time to file a dispositive motion. Also before the Court is Plaintiff's pending motion to compel discovery. (Docket No. 28.) The Court GRANTS the served Defendants' motion for a second extension of time to file their dispositive motion, and sets a new briefing schedule. The Court will also address the matter of unserved Defendant Francis as well as Plaintiff's pending motions below.
II. Overdue Dispositive Motion
On June 26, 2013, served-Defendants Leal and Ziebrath filed their answer; however, they did not file a dispositive motion. Instead, their attorney, Arlene M. Rosen, Esq., filed a letter dated December 12, 2013 "apologiz[ing] for [Defendants'] failure to file a dispositive motion within the time prescribed by the Court." (Docket No. 23.) In an Order dated January 3, 2014, the Court granted Defendants a sua sponte extension of time to file their dispositive motion up to and including February 7, 2014. The Court added: "If Defendants Leal and Ziebrath fail to file their dispositive motion by the new deadline, the Court may consider the imposition of monetary sanctions. " (Docket No. 25 at 2 (emphasis in original).) To date, Defendants' dispositive motion is presently overdue. Attorney Rosen has filed another letter "apologiz[ing] for [Defendants'] failure to file a dispositive motion as previously requested." (Docket No. 29.) She then makes a request on Defendants' behalf for a second extension of time up to and including "June 15, 2014" to file their dispositive motion in this action. ( Id. ) She explains that the fact that Plaintiff has two cases "arising out of the same set of facts and circumstances" has led to "ongoing confusion about calendaring." ( Id. ) Finally, she claims that she "intends to file a notice of related actions shortly" for the instant action and his other pending action, Case No. C 11-2923 YGR (PR). ( Id. )
In an Order dated May 7, 2014 in Case No. C 11-2923 YGR (PR), the Court directed Attorney Rosen to file a Notice of Related Cases in that action because it is the one with the earlier filing date. (Docket No. 49 in Case No. C 11-2923 YGR (PR).) Attorney Rosen is directed to file a courtesy copy of the Notice of Related Cases in this action as well. See L.R. 3-12(b).
In that same Order, the Court also granted Attorney Rosen's request for an extension of time to file a dispositive motion and issued a new briefing schedule in that action.
In the instant action, the Court notes that it granted Attorney Rosen one previous extension of time to file a dispositive motion, and that it specifically warned her of the risk of the imposition of monetary sanctions if the February 7, 2014 deadline was not met. Three months have passed, and Attorney Rosen has not met that deadline, the Court issues below an order to show cause why monetary sanctions should not be issued. Nevertheless, the Court GRANTS Defendants' motion for a second extension of time to file their dispositive motion, and sets a new briefing schedule as outlined below.
III. Unserved Defendant Francis and Plaintiff's Motion for Reconsideration
Defendant Francis has been identified by Plaintiff as an Oakland Police Department officer with badge number #8365P. As mentioned above, in its February 19, 2013 Order, the Court found that Plaintiff's complaint stated a cognizable excessive force claim against Defendant Francis and the other Defendants, and ordered the Clerk of the Court to send the complaint and request for waiver of service forms to the named Defendants. With the exception of Defendant Francis, all Defendants waived service and have appeared in this matter. Although the mail to Defendant Francis was not returned as undeliverable, Defendant Francis did not return a waiver of service within the thirty-day period provided in that notice and has not otherwise appeared in this matter. Instead, Attorney Rosen has informed the Court that Defendant Francis "no longer works for the City of Oakland, and the City Attorney requires his consent to our representation, the City Attorney's office cannot effect or waive service on his behalf." (Docket No. 23.)
As mentioned above, Plaintiff has filed a motion for the Court to reconsider its January 3, 2014 Order directing him to provide it with ...