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Mendoza v. Doe

United States District Court, S.D. California

May 29, 2018

CHRISTOPHER M. MENDOZA, Plaintiff,
v.
DOE #1, et al., Defendants.

          ORDER: (1) SETTING DEADLINE FOR DEFENDANT TO RESPOND TO MOTION TO COMPEL (2) SETTING BRIEFING SCHEDULE ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (3) DENYING OTHER REQUESTS [ECF 37, 39] [ECF Nos. 37, 39, 43, 45, 51]

          HON. BERNARD G. SKOMAL UNITED STATES MAGISTRATE JUDGE

         Plaintiff Christopher M. Mendoza has submitted a number of filings to the Court. (ECF Nos. 37, 39, 41, 43, 45, 47, 49, 51.) The Court addresses the motions and issues raised in the filings and orders Defendant to respond to Plaintiff's motions as appropriate.

         I. Use of Deposition [ECF 37]

         Plaintiff has submitted a filing with a caption referencing Federal Rule of Civil Procedure 32, stating “Using Depositions in Court Proceedings” and “Limitations on Use [of] Unavailable Deponent” with a reference to Federal Rule of Civil Procedure 30(a)(1)(A)(iii). The filing goes on to request “the deposition not be used.” A discussion follows regarding Plaintiff's unsuccessful efforts to retain counsel. And then, Plaintiff requests a copy of the deposition. There is no explanation as to whose deposition Plaintiff does not want used.

         As an initial matter, the request is denied because as to both Defendant not using the deposition and Plaintiff obtaining a copy of it, it is unclear what deposition Plaintiff is referencing.

         The discussion of Plaintiff's efforts to retain counsel, the reference to Rule 32, the quoting of “Limitations on Use, ” and a cross reference to Rule 30(a)(2)(A)(iii) suggests Plaintiff maybe referencing his own deposition and seeking to preclude the use of it under Rule 32(a)(5)(B). Rule 32(a)(5)(B) may preclude use of a deposition “against a party who shows that, when served with the notice, it could not, despite diligent efforts, obtain an attorney to represent it at the deposition.” Fed.R.Civ.P. 32(a)(5)(B). To the extent Plaintiff is seeking to preclude Defendant's use of Plaintiff's deposition in this case based on Rule 32(a)(5)(B), the request is denied. This provision applies when a deposition is “taken without leave of court.” This Court granted Defendant leave to take Plaintiff's deposition in its Order of September 29, 2017.

         Plaintiff's request to preclude the use of a deposition is DENIED without prejudice.

         II. Request for Production of Documents [ECF No. 39]

         Plaintiff has submitted a document that appears to be a request for Defendant to produce documents. A request for production of documents should not be filed with the Court. CivLR 33.1(c) (“Unless filing is ordered by the court on motion of a party or upon its own motion, interrogatories, requests for production of and the answers thereto need not be filed unless and until they are used in the proceeding.”) To the extent Plaintiff intends this filing as a motion to compel a response from Defendant to these requests, it is DENIED. Plaintiff has not indicated that this request was served on Defendant, when it was served, when a response was due, or that Defendant failed in any respect to respond. Plaintiff may not, in the first instance, submit discovery requests for Defendant to the Court. Any future filings of discovery requests for Defendant will be rejected for filing.

         III. Interrogatories [ECF No. 43]

         Plaintiff appears to be submitting interrogatories he is propounding on Defendant to the Court. Interrogatories should not be filed with the Court. CivLR 33.1(c) (“Unless filing is ordered by the court on motion of a party or upon its own motion, interrogatories, requests for production of and the answers thereto need not be filed unless and until they are used in the proceeding.”) To the extent Plaintiff intends this filing as a motion to compel a response from Defendant to the interrogatories, it is DENIED. Plaintiff has not indicated that this request was served on Defendant, when a response was due, or that Defendant failed to fully respond. Plaintiff may not, in the first instance, submit discovery requests for Defendant to the Court. Any future filings of discovery requests for Defendant will be rejected for filing.

         IV. Ex Parte Letter [ECF 51]

         Plaintiff has filed a document addressed to the undersigned and described as a “personal letter.” Ex parte communication with the Court is prohibited. Plaintiff may not send personal letters or engage in any ex parte communication with the Court unless ordered to do so.[1] Although it does appear Plaintiff is taking issue with difficulties communicating with counsel for Defendant and Defendant not having produced documents that may have been requested by Plaintiff, the Court cannot rule on requests presented in a personal letter to the Court. If Plaintiff seeks to compel further responses to discovery already propounded on Defendant, he may file a motion to compel further responses. He will need to identify the discovery requested, when it was requested, when it was served, when the response was due, and, if ...


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