United States District Court, E.D. California
HENRY A. JONES, Plaintiff,
DR. JAFFE Et al., Defendants.
DALE A. DROZD, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. Several of plaintiff's motions are pending before the court. The court will address each motion in turn.
I. Plaintiff's Motion for a Settlement Conference
Plaintiff has filed a motion for a court-ordered settlement conference. Defendants have not expressed desire to participate in a settlement conference. Accordingly, the court will not schedule one at this time. If this case survives defendants' pending motion for summary judgment, the court will, as a matter of course, schedule a mandatory settlement conference in this action prior to trial.
II. Plaintiff's Motions to Modify the Scheduling Order
Plaintiff has filed two motions requesting that the scheduling order in this case to allow more time for discovery, both of which defendants have opposed. Under Rule 16 of the Federal Rules of Civil Procedure, the court may modify the scheduling order for "good cause." Fed.R.Civ.P. 16(b)(4). The "good cause" standard "primarily considers the diligence of the party seeking the amendment." See Johnson v. Mammoth Re-creations , 975 F.2d 604, 608 (9th Cir. 1992). In this regard, the court may modify a scheduling order deadline "if it cannot reasonably be met despite the diligence of the party seeking the extension." Id . See also Zivkovich v. Southern California Edison Co. , 302 F.3d 1080, 1087 (9th Cir. 2002) ("If the party seeking the modification was not diligent, the inquiry should end' and the motion to modify should not be granted.").
According to the discovery and scheduling order in this case, the parties were required to complete discovery on or before January 17, 2014. The parties needed to serve all requests pursuant to Federal Rues of Civil Procedure 31, 33, 34, and 36 sixty days prior to that date. It is not clear from plaintiff's motion for an extension of time why he seeks additional time to conduct discovery. Based on plaintiff's motion to compel discussed below, however, it appears that plaintiff may be seeking additional time for discovery in this action because in his view the defendants did not adequately respond to his requests for admission. Specifically, defense counsel objected to plaintiff's requests for admission on the grounds that plaintiff served them after the discovery cut-off date.
In his motions to modify the scheduling order, plaintiff has not adequately explained why he was not able to serve his discovery requests on defense counsel by November 18, 2013. As such, plaintiff has not shown that he conducted himself diligently during the months allotted for discovery by the court's scheduling order. Therefore, plaintiff has not shown the requisite good cause to modify the scheduling order.
III. Plaintiff's Motion to Compel
As noted above, plaintiff has filed a motion to compel defendants to respond to his requests for admission, which defendants have opposed. As an initial matter, plaintiff's motion to compel is untimely. Plaintiff was required to file any motion to compel on or before January 17, 2014. Under the mailbox rule, plaintiff did not file his motion to compel until January 28, 2014.
Moreover, even if plaintiff's motion to compel was timely filed, the court has reviewed defendants' responses to plaintiff's requests for admission, and defendants' objections are well founded. Specifically, plaintiff served defense counsel with his requests for admission on December 17, 2013, a month after the time to do so had expired. Accordingly, the court will deny plaintiff's motion to compel.
IV. Plaintiff's Motion for Subpoenas
Plaintiff has filed a motion requesting the issuance of subpoenas for certain unincarerated witnesses who supposedly have vital information to testify about in these proceedings. Presumably, plaintiff is requesting these subpoenas for trial. At this time, defendants' motion for summary judgment is pending before the court. Accordingly, the court will deny plaintiff's motion for subpoenas without prejudice to renewal of the request after the court rules on defendants' motion for summary judgment. The court also directs plaintiff to review the ...