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Gregory v. City of Vallejo

United States District Court, Eastern District of California

January 9, 2015

CITY OF VALLEJO; former VPD Chief ROBERT NICHELINI, individually and in his official capacity; VPD Officer CHASE CALHOUN, individually; and DOES 1 Through 50, Defendants.


This matter is before the court on the motion by plaintiffs Erika Gregory and Loren Mollner to reopen discovery. ECF 55 (Pls.' Mot.). Defendants City of Vallejo, Chief Robert Nichelini and former Officer Chase Calhoun oppose the motion. ECF 56 (Opp'n). Plaintiffs have replied. ECF No. 58 (Reply). The court decides the matter without a hearing. As explained below, the court DENIES plaintiffs' motion.


Plaintiffs filed an action under 42 U.S.C. § 1983 with related state claims, based on the fatal shooting of their dog Belle by defendant Calhoun. Calhoun shot Belle when answering a call for service at plaintiffs' residence. See First Amended Complaint (FAC), ECF 10. Calhoun was employed by defendant Vallejo Police Department (VPD) and Police Chief Nichelini; plaintiffs allege he was "acting under color of law within the course and scope of [his] employment." Id. ¶ 1. The factual background of this case was explained thoroughly in this court's Order Denying in Part and Granting in Part Defendants' Motion for Summary Judgment and so is not repeated here. ECF No. 52. The court will briefly review the procedural background relevant to this motion.

A. Procedural Background: Case Scheduling

Plaintiffs filed their original complaint on February 20, 2013. ECF No. 2. They filed a first amended complaint on April 9, 2013. ECF No. 10. Defendants filed an answer on April 23, 2012. ECF No. 11. This court held a status conference on July 11, 2013, with both parties appearing. ECF No. 14. There, the court set the following pretrial scheduling order: Initial disclosures to be completed by July 31, 2013; all discovery to be completed by May 19, 2014; disclosure of expert witnesses due by April 17, 2014; all expert discovery to be completed by June 2, 2014; all dispositive motions to be heard no later than July 25, 2014; the final pretrial conference to be held on October 2, 2014; joint pretrial conference statement due by September 11, 2014; and jury trial set for November 17, 2014. ECF No. 15.

Upon stipulation of the parties, this court, on May 7, 2014, granted an extension of time for completion of expert discovery, to October 17, 2014. ECF No. 21. On May 14, 2014, the magistrate judge resolved a discovery dispute and ordered defendant City of Vallejo "shall produce any portion of officer Chase Calhoun's personnel file that relates to the investigation of, and reasons for, his termination, " within 30 days. ECF No. 23. On June 11, 2014, this court granted the parties' stipulated request for extension of time for hearing of dispositive motions; the deadline was reset to August 22, 2014. ECF No. 26. On July 25, 2014, defendants filed a motion for summary judgment. ECF No. 29. Plaintiffs filed several declarations in opposition on August 7, 2014, and their points and authorities in support of their opposition August 21, 2014. ECF Nos. 36-39, 43.

In light of the motion for summary judgment, this court reset the trial date to January 26, 2015, and adjusted other pretrial dates accordingly. ECF No. 51.

On October 28, 2014, the court issued an order denying in part and granting in part the motion for summary judgment. ECF No. 52. On November 5, 2014, the parties stipulated to referral to a magistrate judge for settlement conference; the court granted the stipulation and referred the parties to a magistrate judge not assigned to this case. ECF Nos. 53, 54. Upon this referral, the court reset the final pretrial conference for January 8, 2015 and reset the deadline for the joint pretrial statement to December 31, 2014, while maintaining the trial date. Id.

B. Factual and Procedural Background to Motion

During the January 7, 2014 deposition of Calhoun by plaintiffs' counsel, counsel learned, as of December 2013, Calhoun was no longer employed by VPD. Pls.' Mot. at 2. Defendants' counsel offered to meet and confer on the issue but confirmed the discovery related to Officer Calhoun's displays of force was accurate. Dep. of Chase Calhoun at 9:1-10:25; Ex. 1 Decl. of Nick Casper (Casper Decl.), ECF No. 55. Plaintiffs' counsel inquired about the reasons and circumstances surrounding Calhoun's departure, but defense counsel instructed Calhoun not to answer such questions on grounds they were irrelevant to the incident. Id. On March 3, 2014, plaintiffs' counsel pressed the matter by sending a meet-and-confer letter to defense counsel; he received no written response. Casper Decl. ¶ 4. In conversations between the parties, defense counsel maintained the City of Vallejo would not produce documents related to Calhoun's departure because they were irrelevant. Casper Decl. ¶ 5.

The parties took their discovery dispute to the magistrate judge, who then instructed the City of Vallejo to produce documents related to Calhoun's termination. ECF No. 23. The City of Vallejo produced the requested documents on June 16, 2014, and filed them with their motion for summary judgment on July 25, 2014. ECF No. 29.

Following the production of these documents, plaintiffs served a Notice of Taking Continued Deposition of Chase Calhoun, requesting a date of July 29, 2014. Notice of Continued Dep., Ex. 6 Casper Decl., ECF No. 55. On July 7, 2014, defendants' counsel responded, indicating Calhoun would not be produced for deposition because fact discovery had closed on May 19, 2014. Letter from Faruqi to Casper, Ex. 7, Casper Decl., ECF No. 55. Plaintiffs claim they have continued attempting to engage with defense counsel regarding a continued deposition of Calhoun, but defendants have declined to talk. Pls.' Mot. at 5. Although plaintiffs, on July 23, 2014, requested a status conference with the magistrate judge regarding this issue, that judge denied the request because discovery had closed, a scheduling matter determined by this court. Ex. 10 E-mail from Courtroom Deputy Matt Caspar ("Caspar Email"), ECF 55-3.

On November 6, 2014, plaintiffs filed the instant motion to reopen discovery; specifically, plaintiffs seek to 1) continue Chase Calhoun's deposition; 2) depose an individual designated by the City of Vallejo under Federal Rule of Civil Procedure 30 as having knowledge of the VPD logs; and 3) obtain expanded dispatch recordings that include the initial call for service ...

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