United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION OF THE MAGISTRATE JUDGE'S ORDER DENYING
PLAINTIFF'S MOTION FOR AN EXTENSION OF NON-EXPERT
DISCOVERY DOC. NO. 33)
lawsuit is about an inmate, Jason Morris, who was murdered by
his cellmate, Michael Beardsley, while incarcerated at
California's Wasco State Prison, where Defendant John
Sutton (“Defendant”) was the warden. Jason's
wife, Plaintiff Jennifer Morris (“Plaintiff), filed
this lawsuit against Defendant in November 2017, alleging
that Sutton negligently failed to protect Jason from being
murdered. After non-expert discovery closed on March 29,
2019, Plaintiff moved to reopen non-expert discovery on April
10, 2019. Plaintiffs motion to reopen non-expert discovery
was denied by the Magistrate Judge. Plaintiff then moved the
Court for reconsideration of the Magistrate Judge's
denial. For the reasons discussed herein, the Court will deny
Plaintiffs motion for reconsideration.
original complaint named the California Department of
Corrections and Rehabilitation (“CDCR”) as a
defendant, in addition to Defendant Sutton. The Office of the
Attorney General of California (“Attorney
General”) appeared as the attorney for both
then-defendant CDCR and Defendant Sutton. CDCR then moved to
dismiss Plaintiffs claims against CDCR, and the Court granted
that motion on March 8, 2018. See Doc. No. 11.
Consequently, CDCR was terminated as a party from this
August 15, 2018, the Court issued a scheduling order.
See Doc. 23. The scheduling order imposed the
following deadlines and dates:
• January 14, 2018, for lodging motions for leave to
amend the pleadings;
• March 29, 2019, for completion of non-expert
• June 28, 2019, for lodging dispositive motions;
• November 5, 2019, for the start of trial.
the Court issued the scheduling order, Plaintiffs attorney,
Mark Coleman, and his staff failed to
“effectively” calendar the non-expert discovery
deadline and “tickler” reminders of the deadline,
contrary to their normal protocol. Doc. No. 28 at 9. Their
failure was partly due to Coleman and his staff dealing with
the recent termination of an administrative employee, which
in turn caused Coleman and his staff to be
“over-extended.” Id at 2.
September 28, 2018, Defendant served Plaintiff with initial
disclosures. Defendant's initial disclosures identified
the names and involvement of the following three prison
officers at Wasco State Prison: (1) D. Standiford, the
correctional sergeant who approved the bed-move request that
placed Beardsley in the cell with Jason; (2) A. Ball, the
correctional sergeant who reviewed the bed-move request that
placed Beardsley in the cell with Jason; and (3) D. Silva
Escobar, the correctional officer who requested the bed-move
that placed Beardsley in the cell with Jason. See
Doc. No. 31.
“a large part of the month of December  and into
January 2019, ” Plaintiffs attorney was out of his
office due to a medical procedure that he underwent on
December 5, 2018. Doc. No. 28. In his declaration, Plaintiffs
attorney did not tell the Court when he first learned that he
would undergo the medical procedure and be out of the office
for over a month. When Plaintiffs attorney returned to his
office in January 2019, he was “inundated by matters
which needed [his] immediate attention.” Id
According to Plaintiffs attorney, these matters were
“urgent” criminal matters. Id.
February 15, 2019, Plaintiff served Defendant with
interrogatories and document production requests. On February
28, 2019, Plaintiff noticed the depositions of Defendant and
the person-most-knowledgeable (“PMK”) for CDCR,
which Plaintiff scheduled for March 21, 2019. Plaintiff
served Defendant's attorney with notices of the two
depositions, but Plaintiff did not serve CDCR - which at that
time was not a party - with a subpoena for the PMK
deposition. Plaintiffs attorney declared that CDCR was not
served with a subpoena because the assistant of Plaintiffs
attorney assumed that Defendant's attorney, the Attorney
General, would also be representing CDCR for the PMK
deposition. Plaintiffs attorney admitted that it was an error
to not serve CDCR with a subpoena. Id at 10.
March 7, 2019, Beardsley's criminal trial for the murder
of Jason concluded.
March 15, 2019, the Attorney General informed Plaintiffs
attorney that the CDCR had not been served with a subpoena
and, for that reason, the CDCR would not appear at the
scheduled PMK deposition. Plaintiffs attorney declared that
because he did not realize his error of not serving the CDCR
with a subpoena until March 15, 2019, “there was not
sufficient time to re-notice the deposition of the PMK . . .
prior to the discovery cut-off of March 29, 2019.”
Id On March 19, 2019, Plaintiff received
Defendant's interrogatory responses. The interrogatory
responses provided the names of the three prison officers
responsible for transferring Beardsley into Morris's
prison cell - namely, D. Standiford, A. Ball, and D.
March 20, 2019, Plaintiff scheduled the depositions of the
three prison officers for March 28, 2019, after Plaintiff
“arranged with the Wasco Litigation Coordinator to
accept service of the subpoenas” for the officers.
Id at 10-11. Also on March 20, 2019, Plaintiff
served the prison's litigation coordinator with subpoenas
for the three officers' depositions, which were scheduled
to be conducted in Fresno, California. Plaintiff served
Defendant with notices of the three officers'
March 21, 2019, according to Plaintiffs attorney,
“counsel for Defendant Sutton indicated that he
believed his client would agree to allow the deposition of
the PMK of the CDCR to be re-noticed and proceed despite the
discovery cut-off of March 29, 2019.” Id at
March 26, 2019, the Attorney General informed Plaintiff that
it had been retained to represent the three prison officers.
The Attorney General then canceled the officers'
scheduled depositions because, according to the Attorney
General, there were procedural problems with the deposition
subpoenas. Specifically, the subpoenas were not accompanied
by witness fees, there was insufficient time between when the
subpoenas had been served and when the depositions were
scheduled to be conducted, and the distance between the
depositions' scheduled location - Fresno, California -
and residences and places of employment of the three prison
officers - Bakersfield, California - was greater than 100
March 30, 2019, the non-expert discovery deadline passed.
April 1, 2019, Plaintiff sent a discovery meet-and-confer
letter to Defendant in an attempt to informally resolve the
outstanding discovery issues. Specifically, Plaintiff
requested that the ...