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Mir v. Kirchmeyer

United States District Court, S.D. California

June 22, 2016

JEHAN ZEB MIR, M.D., Plaintiff,
v.
KIMBERLY KIRCHMEYER, et al. Defendants.

          ORDER REGARDING PLAINTIFF’S EX PARTE APPLICATION TO COMPEL DEFENDANT LEVINE TO ANSWER PLAINTIFF’S REQUEST FOR ADMISSIONS [ECF NO. 154]

          DAVID H. BARTICK United States Magistrate Judge.

         On April 22, 2016, Plaintiff Jehan Zeb Mir, M.D. (“Plaintiff”) filed an ex parte motion requesting the Court compel Defendant Sharon Levine (“Levine”) to answer Plaintiff’s first set of request for admissions and request to admit genuineness of documents. (ECF No. 154.) Kirchmeyer filed an opposition to Plaintiff’s ex parte motion on May 13, 2016. (ECF No. 160.) For the reasons set forth below, Plaintiff’s motion is DENIED.

         I. BACKGROUND

         Plaintiff initiated this action on September 25, 2012, alleging Defendants wrongfully took disciplinary action against Plaintiff’s physician’s and surgeon’s certificate. (ECF No. 1.) On October 19, 2015, Plaintiff served a First Set of Request for Admissions on Levine. (ECF No. 154 at 32-53.) On December 18, 2015, Levine responded. (ECF No. 154 at 55-75.)

         Subsequently, on April 22, 2016, Plaintiff filed the instant ex parte motion requesting the Court to compel Levine to admit each of the 167 Request for Admissions he propounded.[1] (ECF No. 154.)

         II. ANALYSIS

         A. Failure to Comply with the Court’s Procedures for Discovery Disputes

         Plaintiff has failed to comply with this Court’s procedures for filing discovery motions. First, Plaintiff has not complied with Section IV.C. of the undersigned Magistrate Judge’s Civil Chambers Rules which requires the filing of a Joint Motion for Determination of Discovery Dispute.[2] Second, Plaintiff has not shown he adequately met and conferred with Levine prior to filing the instant motion. The duty to meet and confer prior to bringing a discovery motion is required not only by this Court’s Chambers Rules and the Southern District’s Civil Local Rules, but also by the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 37(a); Civ. L.R. 26.1(a). Plaintiff also failed to comply with the Court’s rules governing ex parte applications. See Civ. L. R. 83.3(h)(2).

         Further, Plaintiff’s motion is untimely. Pursuant to this Court’s Chambers Rules, all discovery motions must be filed “within forty-five (45) days of the date upon which the event giving rise to the dispute occurred.” Judge Bartick’s Civil Chambers Rules IV(C). For written discovery, the event giving rise to the dispute is the date of the service of the initial response. Id. Here, the event giving rise to the dispute was the date Levine responded to Plaintiff’s Request for Admissions, which was December 18, 2015. (ECF No. 154 at 55-75.) Therefore, the deadline for this discovery motion to be filed was February 1, 2016. Plaintiff’s motion to compel was filed nearly three months late, and Plaintiff has not provided any justification for his untimeliness.

         Previously, Plaintiff was warned that all discovery disputes must comply with the Court’s rules. (See ECF No. 146 at 2 (advising the parties that “all discovery disputes must be filed in accordance with the time limits, and filing procedures set forth in Judge Bartick’s Civil Chambers Rules”).) It would be well within the Court’s discretion to reject Plaintiff’s motion for these reasons. However, in the interest of justice, the Court will address the merits of the parties’ dispute. Nevertheless, Plaintiff is advised that any future discovery motion will not be considered unless the Court’s rules and procedures are complied with.

         B. Plaintiff’s Motion to Compel Admissions

         Requests for Admissions (“RFAs”) are governed by Federal Rule of Civil Procedure 36, which provides:

A party may serve on any other party a written request to admit, for the purposes of the pending action only, the truth of any matters within ...

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