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Brown v. Harris

United States District Court, E.D. California

March 21, 2017

CORNELL BROWN, Plaintiff,
v.
R. HARRIS, Defendant.

          ORDER GRANTING PLAINTIFF'S MOTION FOR EXTENSION OF TIME FOR EXPERT DISCOVERY, TO DESIGNATE EXPERTS AND DEPOSE DEFENDANT'S EXPERTS (ECF NO. 107) ORDER DENYING DEFENDANT'S MOTION TO DISMISS (ECF NO. 112)

          BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Cornell Brown is a state prisoner proceeding in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). (ECF Nos. 5, 83.) This action proceeds against Defendant Harris on Plaintiff's claim of excessive force arising out of events on April 12, 2012. A jury trial is currently set for May 30, 2017.

         Currently before the Court are: (1) Plaintiff's motion to extend time for discovery, to designate experts, and to depose defendant's experts, filed January 25, 2017 (ECF No. 107); and (2) Defendant's motion to dismiss, filed February 6, 2017 (ECF No. 112).

         A telephonic hearing was held on March 21, 2017 regarding these motions and other pretrial matters. Jeremy Lessem and Jamal Tooson of Lessem, Newstate & Tooson LLP, counsel for Plaintiff, appeared by telephone, and Joanna Hood, of the Office of the Attorney General, counsel for Defendant, appeared in person at that hearing.[1]

         I. Relevant Procedural Background

         On January 18, 2017, the Court held a telephonic trial confirmation hearing in this case. Jamal Tooson, counsel for Plaintiff, and Joanna Hood, counsel for Defendant, attended the hearing. Following the hearing, on good cause shown, the Court continued the jury trial date to May 30, 2017, at 8:30 a.m. in Courtroom 8. The Court also allowed Plaintiff to file a motion regarding the reopening of discovery for limited purposes and the late designation of expert witnesses. (ECF No. 105.)

         Plaintiff filed his motion to extend time for discovery, designate experts, and depose Defendant's experts on January 25, 2017. (ECF No. 107.) Defendant filed an opposition on February I, 2017. (ECF No. 111.) A reply was permitted, (ECF No. 105, p. 3), but none was filed by the deadline.

         On February 6, 2017, Defendant filed a request for dismissal pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 110. (ECF No. 112.) Plaintiff filed an opposition to that motion on February 9, 2017, (ECF No. 113), and Defendant filed a reply to Plaintiff's opposition on February 16, 2017, (ECF No. 114).

         Following oral argument on these motions at the hearing as noted above, the motions are now deemed submitted. Local Rule 230(1).

         II. Defendant's Motion to Dismiss

         The basis and arguments on this motion are known to the parties and were discussed at the hearing. In sum, Defendant seeks dismissal based on Plaintiff's repeated failure to comply with orders requiring a completed pretrial statement, and its prejudicial effect on Defendant's and the Court's preparations for trial.

         District courts have the inherent power to control their dockets and “[i]n the exercise of that power they may impose sanctions including, where appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). In determining whether to dismiss an action, the Court must consider several factors: (1) the public's interest in expeditious resolution of litigation; (2) the Court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988). “Because dismissal is a harsh penalty, it should be imposed as a sanction only in extreme circumstances.” Oliva v. Sullivan, 958 F.2d 272, 273 (9th Cir. 1992).

         For the reasons discussed in open court, Defendant's motion to dismiss is denied. Although the Court admonishes Plaintiff's counsel for the repeated non-compliance with its orders and continuing deficiencies in the pretrial statement, the Court finds no bad faith by Plaintiff or his counsel here. The Court instead finds that due to the timing of counsel's appearance and the orders here, there may have been confusion, and counsel has attempted compliance in good faith. Importantly, the interests of justice and public policy strongly favor a disposition on the merits in this matter, and the risk of any prejudice to Defendant will be greatly reduced here by a modification of the scheduling orders in this case, discussed further below.

         As to Defendant's alternative motion to exclude certain evidence as a sanction here, the Court finds it appropriate under the circumstances to preclude Plaintiff from seeking the attendance of incarcerated witnesses, other than Plaintiff himself, to testify at trial in this matter. As discussed at the hearing, the December 6, 2016 deadline for a motion for the attendance of incarcerated witnesses was set forth in the Court's August 31, 2016 scheduling order, (ECF No. 96), and was thus well-known to Plaintiff for several months. No motion was filed, no extension of that deadline was sought, and no proposed witnesses have ...


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