United States District Court, E.D. California
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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
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).
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.
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.
plaintiffs motion to compel (ECF No. 60) is ...