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Rice v. Bauer

United States District Court, E.D. California

April 25, 2017

KORDY RICE, Plaintiff,
v.
D. BAUER, et al., Defendants.

          ORDER

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He alleges that the defendants violated his Eighth Amendment rights by using excessive force against him. ECF No. 1. He has filed a motion to compel (ECF No. 60) wherein he argues that defendants should be compelled to answer discovery requests to which they object as untimely. Id. at 2. For the reasons stated hereafter, the motion is denied.

         I. Procedural Background

         The scheduling order specified that discovery was to be completed by September 2, 2016. ECF No. 37 at 4. After extensions were granted by the court, the deadline was continued to November 2, 2016. ECF No. 41. This motion was filed on February 16, 2017. ECF No. 60. Thus, the motion is clearly late and the question is whether there is any just cause in excusing plaintiff's delay in pursing it.

         The due dates and the history of their extensions is as follows. Motions to compel were to be filed by that date and requests for discovery pursuant to Fed.R.Civ.P. 31, 33, 34, or 36 were to be served by July 1, 2016. Id. On June 28, 2016, plaintiff moved for a sixty day extension of time to submit discovery. ECF No. 40. The court granted that extension of time on July 21, 2016 and directed plaintiff that: (1) any requests for discovery pursuant to Fed.R.Civ.P. 31, 33, 34, or 36 were to be served by September 1, 2016; and (2) that any motion to compel discovery was to be filed by November 2, 2016. ECF No. 41.

         On November 2, 2016, defendants moved to compel answers to their interrogatories, requests for admission, and requests for production of documents. ECF No. 47. On that date, defendants also moved to modify the discovery deadline for the purpose of conducting third-party discovery. ECF No. 48. The court granted defendants' motion to compel and directed plaintiff to serve his responses within sixty days. ECF No. 59 at 3. The court also extended the discovery deadline for seventy-four days (i.e. to April 17, 2017) for the limited purpose of allowing defendants to conduct third-party discovery. Id.[1]

         II. Legal Standard

         Pursuant to Rule 37 of the Federal Rules of Civil Procedure, “[a] party seeking discovery may move for an order compelling an answer, designation, production, or inspection.” Fed.R.Civ.P. 37(a)(3)(B). The movant bears the burden of establishing that the requested discovery is relevant. Aros v. Fansler, 548 F. App'x 500, 501 (9th Cir. 2013). Once the movant carries his burden, the burden shifts to the opposing party to show that the “information is being sought to delay bringing the case to trial, to embarrass or harass, is irrelevant or privileged, or that the person seeking discovery fails to show need for the information.” Khalilpour v. CELLCO P-ship, No. 09-02712, 2010 U.S. Dist. LEXIS 43885, at *4 (N.D. Cal. Apr. 1, 2010) (internal quotation marks and citations omitted). Under Rule 16 of the Federal Rules of Civil Procedure, district courts “broad discretion to manage discovery and to control the course of litigation . . . .” Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011).

         III. Analysis

         Defendants argue that plaintiffs motion should be denied because both his motion to compel and his discovery requests were untimely. As noted supra, plaintiffs discovery requests were to be served by September 1, 2016. ECF No. 41. Defendants state, however, that they did not receive discovery requests from plaintiff until February 2017. ECF No. 61 at 3; ECF No. 61-1 ¶ 3. In his motion to compel, plaintiff states that the delay was caused by prison transfers and his evaluation at a mental health facility. ECF No. 60 at 2-3. Plaintiff first notified the court of his mental health evaluation in a request for extension of time filed in June 2016, however. ECF No. 40. The court granted that request, thereby setting the current deadline of September 1, 2016 for propounding discovery requests. ECF No. 41. That order also set the deadline for motions to compel to November 2, 2016. Id. Plaintiff failed to request further extensions of these deadlines. He has also failed to show why, with the exercise of due diligence, he could not meet those deadlines.

         Based on the foregoing, plaintiffs motion to compel is denied as untimely. He has failed to adhere to or seek modification of the scheduling order. Parties should “diligently attempt to adhere to that schedule throughout the subsequent course of the litigation.” Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. Cal. 1999). Plaintiff has failed to demonstrate that diligence here.

         IV. Conclusion

         Accordingly, plaintiffs motion to compel (ECF No. 60) is ...


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