United States District Court, Eastern District of California
ORDER DENYING PLAINTIFF'S MOTION FOR SUBPOENA DUCES TECUM (ECF NO. 110)
BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE
I. Procedural Background
Plaintiff Guillermo Garcia ("Plaintiff) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiffs second amended complaint against Defendants Saylor and McCue for denial of access to the court.
On January 10, 2013, the Court issued a Discovery and Scheduling Order, which set the deadline to complete discovery as September 10, 2013. (ECF No. 46.)
On September 12, 2013, Plaintiff filed a motion to compel Defendants' answers to request for admissions, interrogatories and request for production of documents. (ECF No. 54.) On October 24, 2013, the Court denied Plaintiffs motion to compel without prejudice because Plaintiffs discovery requests were untimely. However, the Court granted Plaintiff leave to file a motion to amend the Discovery and Scheduling Order to extend the discovery cut-off date. (ECF No. 60.)
On January 2, 2014, Plaintiff filed a motion to modify the Discovery and Scheduling Order to extend the discovery deadline. (ECF No. 73.) On April 9, 2014, the Court partially granted Plaintiffs request and extended the discovery deadline an additional fifty days to permit Plaintiff to obtain responses to requests for admissions and interrogatories from Defendant McCue and to file any necessary motion to compel. (ECF No. 84.)
On May 21, 2014, Plaintiff filed a motion to compel further responses to his requests for admissions and interrogatories from Defendant McCue. (ECF No. 85.) Defendants opposed the motion on June 9, 2014, and Plaintiff replied on August 19, 2014. (ECF Nos. 94, 100.) On October 27, 2014, the Court denied Plaintiffs motion to compel further discovery responses. (ECF No. 106.) On November 21, 2014, Plaintiff filed a petition for writ of mandamus to the Ninth Circuit Court of Appeals regarding the Court's denial of his motion to compel. (ECF No. 108.)
On December 15, 2014, Plaintiff filed letters and a subpoena, which appear to seek documents from CourtCall Remote Court Appearances regarding a court call on August 22, 2008. (ECF No. 110.) The Court construes Plaintiffs filing as a motion for subpoena duces tecum to obtain certain documents. Defendants did not file an opposition and the motion is deemed submitted. Local Rule 230(1).
II. Motion for Subpoeanas Duces Tecum
Pursuant to the Discovery and Scheduling Order issued in this action, the deadline for Plaintiff to complete all discovery, with the exception of interrogatories and requests for admissions directed to Defendant McCue, expired on September 10, 2013. Plaintiff now seeks third-party discovery after the expiration of the discovery deadline set forth in the scheduling order.
Pursuant to Rule 16(b), a scheduling order "may be modified only for good cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4). The "good cause" standard "primarily considers the diligence of the party seeking the amendment." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). The district court may modify the scheduling order "if it cannot reasonably be met despite the diligence of the party seeking the extension." Id. If the party was not diligent, the inquiry should end. Id.
Plaintiff has not demonstrated diligence in seeking to obtain a third-party subpoena. According to the record in this matter, Plaintiff made no attempt to obtain a subpoena until December 2014, which is more than one year after the close of discovery. Plaintiff has not explained the delay and has not established good cause to modify the scheduling order. Accordingly, Plaintiffs request for a subpoena duces tecum is untimely and shall be denied.
III. Conclusion and Order
For the reasons stated, Plaintiffs request for a subpoena ...