United States District Court, N.D. California
LORENZO R. CUNNINGHAM, Plaintiff,
MEDTRONIC INC., et al., Defendants.
ORDER ADDRESSING PENDING MOTIONS RE: DKT. NOS. 137,
HAYWOOD S. GILLIAM, JR. United States District Judge
October 30, 2014, plaintiff, a California state prisoner
incarcerated at the California Healthcare Facility, filed
this pro se action pursuant to 42 U.S.C. §
1983. The action arises out of lumbar-thoracic spinal fusion
surgeries performed on plaintiff in April of 2012 and
September of 2012. On February 21, 2017, the Court screened
plaintiff's second amended complaint (“SAC”),
which sought to add claims arising out of a third
lumbar-thoracic spinal fusion surgery performed in February
of 2016. Plaintiff has named two defendants: (1) Dr. Burch,
who performed the surgeries, and (2) Medtronic Inc.
(“Medtronic”), which manufactured the spinal rods
used in the 2012 surgeries and February 2016 surgery. The
Court found that, liberally construed, the SAC states: (1) a
claim of deliberate indifference to serious medical needs as
against Dr. Burch; (2) supplemental state law claims for
negligence as against Dr. Burch; and (3) supplemental state
law claims for strict liability, negligence, and failure to
warn as against Medtronic. The Court also bifurcated summary
judgment proceedings and directed Dr. Burch to file a motion
for summary judgment, while the claims against Medtronic were
stayed. Dr. Burch's motion for summary judgment is
currently due by October 12, 2017. Now before the Court are
the following motions, all brought by plaintiff: (1) motion
for leave to serve Dr. Burch with additional interrogatories;
(2) motion for Court to order alternative dispute resolution;
and (3) motion to compel discovery. The Court addresses these
requests in turn.
plaintiff seeks leave to serve interrogatories in excess of
the twenty-five interrogatory limit set forth at Fed.R.Civ.P.
33(a)(1). Dr. Burch does not oppose the request but reserves
the right to object to the additional interrogatories on all
appropriate grounds. Accordingly, the motion is GRANTED.
plaintiff requests that the Court order the parties to engage
in alternative dispute resolution (“ADR”) within
this court's ADR program. The motion is DENIED as the
parties have already engaged in a court-ordered settlement
conference, which was unsuccessful in resolving the case. The
parties are free to engage in settlement talks on their own.
plaintiff moves to compel from Dr. Burch additional responses
to discovery already propounded. Plaintiff fails to certify
that he has fulfilled the meet and confer requirements under
Rule 37(a)(1) of the Federal Rules of Civil Procedure and
Civil Local Rule 37-1(a). Before filing a motion to compel,
the moving party must first attempt to resolve the dispute
informally with the opposing party. It is only when the
parties are unable to resolve the dispute after making a good
faith effort to do so that they should seek the Court's
intervention. See Fed. R. Civ. P. 37(a)(3)(B); N.D.
Cal. Local Rule 37-1(b).
for Dr. Burch states that he did receive a meet and confer
letter from plaintiff, but it did not arrive until July 21,
2017, which was after plaintiff had already filed the instant
motion to compel. Dkt 145-1 ¶ 9. On this record, the
Court finds that there remains an opportunity for a
plaintiff is incarcerated, he is not required to meet and
confer with Dr. Burch's counsel in person. Rather, he
need only send a letter to counsel stating the specific
discovery he seeks and the reasons that plaintiff believes he
is entitled to such discovery. Unless and until plaintiff
files the requisite certification demonstrating that he has
conferred with counsel, making known his intention to file a
motion to compel, the Court will not involve itself in the
parties' discovery conduct. Accordingly, the motion to
compel is DENIED without prejudice as premature.
Court's standing order requires a party to obtain leave
of court before filing a discovery dispute and specifies that
discovery disputes shall be prepared by joint letter brief
not to exceed five pages. Because plaintiff is detained, he
will not be required to obtain leave of court before filing a
future motion to compel. Nor will the parties be required to
prepare a joint letter brief. However, plaintiff will be
limited to one single motion to compel addressing all
remaining discovery disputes and not to exceed fifteen (15)
pages. Plaintiff must therein certify that he has engaged in
meet and confer. Plaintiff must also clearly inform the Court
which discovery requests are the subject of his motion to
compel and for each disputed response, why defendant's
objections are not justified or why the response provided is
deficient. If plaintiff files a renewed motion to compel, Dr.
Burch shall file an opposition, not to exceed fifteen (15)
pages, within twenty-eight (28) days after the date the
motion is filed. Plaintiff may file a reply brief, not to
exceed five (5) pages, within fourteen (14) after the date
the opposition is filed.
the Court notes that part of plaintiff s motions to compel is
styled as a request for a “subpoena-order.” To
the extent plaintiff requires a subpoena to obtain discovery
from a third party, the request is GRANTED. The Clerk shall
send a blank subpoena to plaintiff for him to complete and
return to the Court for issuance by the Clerk and thereafter
to be returned to plaintiff for service.
order terminates Docket Nos. 137, 138, and 140.
 Plaintiff also requested an extension
of the summary judgment deadline but subsequently withdrew
the request. See ...