United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION (Docs. 76, 83, 85)
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
James Leos, is a state prisoner proceeding pro se
and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983. The matter was referred to
a United States Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 302. Plaintiff filed a motion to
compel Defendants to respond to his First Set of Requests for
Admissions, Second Set of Interrogatories, and First Set of
Requests for Production, (Doc. 69), which the Magistrate
Judge denied as untimely (Doc. 70).
1, 2017, Plaintiff filed objections to the Magistrate
Judge's order denying his motion to compel. (Doc. 76.)
Defendants filed a response. (Doc. 82.) Plaintiff requested
an extension to reply to Defendants' response, (Doc. 83),
which is hereby granted nunc pro tunc, and
thereafter filed his reply (Doc. 84). Plaintiff's
objections are construed as a motion for reconsideration,
which is deemed submitted. L.R. 230(l).
60(b) of the Federal Rules of Civil Procedure provides that
“[o]n motion and upon such terms as are just, the court
may relieve a party . . . from a final judgment, order, or
proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence could not
have been discovered in time to move for a new trial under
Rule 59(b); (3) fraud . . ., misrepresentation, or misconduct
by an opposing party; . . . or (6) any other reason
justifying relief from the operation of judgment.”
Motions under Rule 60(b) “must be made within a
reasonable time -- and for reasons (1), (2), and (3) no more
than a year after the entry of the judgment or order or the
date of the proceeding.”
under Rule 60 “is to be used sparingly as an equitable
remedy to prevent manifest injustice and is to be utilized
only where extraordinary circumstances . . .” exist.
Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008)
(internal quotations marks and citation omitted) (addressing
reconsideration under Rules 60(b)(1)-(5)). The moving party
“must demonstrate both injury and circumstances beyond
his control . . . .” Id. (internal quotation
marks and citation omitted). Further, Local Rule 230(j)
requires, in relevant part, that Plaintiff show “what
new or different facts or circumstances are claimed to exist
which did not exist or were not shown" previously,
“what other grounds exist for the motion, ” and
“why the facts or circumstances were not shown”
at the time the substance of the order which is objected to
motion for reconsideration should not be granted, absent
highly unusual circumstances, unless the district court is
presented with newly discovered evidence, committed clear
error, or if there is an intervening change in the
controlling law, ” and it “may not be
used to raise arguments or present evidence for the first
time when they could reasonably have been raised earlier in
the litigation.” Marlyn Nutraceuticals, Inc. v.
Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.
2009) (internal quotations marks and citations omitted)
(emphasis in original).
asserts that he relied on assurances from defense counsel at
his deposition on January 24, 2017, that they would provide
responses to discovery he propounded on January 12, 2017.
(Doc . 76.) As correctly stated in the Magistrate Judge's
order denying Plaintiff's motion to compel, the Discovery
& Scheduling Order was twice amended which resulted in a
final discovery cut-off date of February 28, 2017. (Doc. 50.)
Both of the amended D&S orders repeated the 45 day
response and service time and required motions to compel or
for extensions to be filed on or before the discovery
deadline. (See Docs. 48, 50.) Despite repeated,
emphatic warnings in the D&S orders, Plaintiff did not
file his motion to compel until April 3, 2017 -- over a month
beyond the February 28, 2017 discovery deadline.
original motion and his motion to compel show that, prior to
January of this year, he had only served one set of
interrogatories on Defendants, (see Docs. 69, 76),
which he received responses to on November 30, 2016, (Doc.
76, 3:8-9). Plaintiff provides no explanation as to why he
waited over a month thereafter, until January 12, 2017 (47
days prior to the discovery cutoff deadline), to serve a
second round of discovery on Defendants.
does Plaintiff explain why he did not file a motion to
continue the discovery deadline other than that he relied on
an erroneous date in correspondence from defense counsel over
the date in the applicable D&S order -- which does not
equate to good cause. It is because of his own lack of
diligence that Plaintiff finds himself in his current
predicament, which terminates further inquiry.
Johnson, 975 F.2d at 609.
counsel did not send the letter refusing to respond to
Plaintiff's propounded discovery until the date of the
discovery deadline, which as noted by the Magistrate Judge is
not condoned, nevertheless it is but a consequence of
Plaintiff waiting until very nearly the last date possible to
serve his second round of discovery requests on Defendants
and provides no excuse for Plaintiff's late motion to
compel responses. Though Plaintiff's discovery was timely
served, his motion to compel responses was not
timely filed and he did not request an extension of the
discovery deadline. Plaintiff fails to show newly discovered
evidence, commission of clear error, or an intervening change
in the controlling law, and merely repeats arguments and
assertions raised and considered in his motion to compel.
Marlyn Nutraceuticals, Inc., 571 F.3d at 880.
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C) and Local Rule 303, this Court has conducted a
de novo review of this case. After careful reviewed
the entire file, the Court finds the order which issued on
April 6, 2017 (Doc. 70) denying Plaintiff's motion to
compel discovery responses as untimely to be supported by the
record and proper analysis.