United States District Court, E.D. California
SAMUEL KOLB, J.K., by and through his Guardian ad Litem, KARIN KOLB, and KARIN KOLB, Plaintiffs,
v.
COUNTY OF PLACER; DEPUTY CURTIS HONEYCUTT, Defendants.
ORDER
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
On
November 22, 2019, plaintiffs filed a motion to compel
discovery and noticed the motion for hearing before the
undersigned on December 20, 2019.[1] (ECF No. 30.) On December
13, 2019, plaintiffs filed a notice of request to file a
redacted and sealed Joint Statement re Discovery Dispute and
an exhibit related to the motion to compel. (ECF No. 31.) On
December 17, 2019, the court denied plaintiffs' request
due to plaintiffs' failure to address and establish that
the relevant standard for sealing had been satisfied. (ECF
No. 33 at 2.) The order also noted that the parties'
Joint Statement failed to reflect compliance with the
undersigned's meet and confer requirements.[2] (Id.)
Accordingly, plaintiffs' request to seal and motion to
compel were denied without prejudice to renewal and the
December 20, 2019 hearing of the motion to compel was
vacated. (Id. at 3.) On December 17, 2019,
plaintiffs filed an “unopposed ex parte
request to maintain the December 20, 2019 date for hearing on
plaintiff's motion to compel.” (ECF No. 34 at 1.)
This motion will be denied for several reasons.
First,
although styled as a “request to maintain the December
20, 2019 date for hearing, ” there is nothing to
maintain. (Id.) The motion has been denied without
prejudice to renewal and the hearing vacated. What plaintiffs
are in fact seeking is reconsideration. Reconsideration
requires a showing of “new or different facts or
circumstances . . . which did not exist or were not shown
upon such prior motion, or what other grounds exits for the
motion” as well as a showing of “why the facts or
circumstances were not shown at the time of the prior
motion.” Local Rule 230(j)(3)-(4). Plaintiffs' ex
parte motion sets forth neither grounds for the motion nor
why the facts or circumstances were not shown
previously.[3]
Second,
plaintiffs' ex parte motion does not dispute, or even
acknowledge, plaintiffs' failure to address and establish
the relevant standard in their request to seal. Because of
plaintiffs' failure, the court could not grant
plaintiffs' request to seal and could not order the
filing of the redacted version of the Joint Statement.
Without a timely filed Joint Statement, the court cannot
prepare for a discovery hearing. And Local Rule 251(a)
provides that a “hearing may be dropped from calendar
without prejudice if the Joint Statement re Discovery
Disagreement . . . is not filed at least seven (7) days
before the scheduled hearing date.”
Third,
the sole basis for plaintiffs' ex parte motion is the
assertion that “vacating the December 20, 2019 hearing
greatly prejudices Plaintiffs' ability to conduct
discovery and take depositions[.]” (ECF No. 34 at 3.)
In this regard, plaintiffs note that delay in hearing the
motion “would not enable Plaintiffs to perform the
necessary discovery to meet the Court's expert disclosure
deadline of February 24, 2020.” (Id.) However,
according to plaintiffs, “[t]his discovery dispute has
been ongoing since July of 2019.” (Id at 4.)
The decision to wait until December for hearing of a motion
to compel was not the court's. Moreover, plaintiffs could
address this issue by simply seeking a continuation of the
expert disclosure deadline-something plaintiffs'
acknowledge “the parties have discussed[.]”
(Id at 2.)
Finally,
as was true of the proposed Joint Statement, plaintiffs'
ex parte motion does not reflect that the parties have
complied with the undersigned's meet and confer
requirements. The ex parte motion asserts that the
“parties met and conferred extensively prior to the
November 15, 2019 informal conference with the Court and up
to the filing of the Joint Statement on December 13,
2019.” (ECF No. 34 at 4.) The December 17, 2019 order,
however, explained to plaintiffs that, as provided in the
undersigned's Standard Information re discovery disputes
set forth on the court's web page, parties must meet and
confer prior to filing a discovery motion and “must
again confer in person or via telephone or video
conferencing” prior to the filing of the joint
statement. See
http://www.caed.uscourts.gov/caednew/index.cfm/judges/all-judges/united-states-magistrate-judge-deborah-barnes-db.
Although plaintiffs' ex parte motion asserts the parties
“met and conferred extensively, ” it does not
provide exact dates nor the method of meeting and
conferring.[4](ECF No. 34 at 4.)
Accordingly,
IT IS HEREBY ORDERED that plaintiffs' December 17, 2019
ex parte application (ECF No. 34) is denied.
---------
Notes:
[1] The parties have consented to
Magistrate Judge jurisdiction over this action pursuant to 28
U.S.C. § 636(c). (ECF No. 13.)
[2] The order also advised the parties
about the undersigned's page limit policy. (ECF No. 33 at
2.) The purpose of this advisement was simply to aid in
future filings.
[3] Plaintiffs noted in both the request
to seal and the ex parte motion that those motions were
unopposed. While that is certainly relevant information to
convey to the court, lack of opposition cannot substitute for
compliance with the applicable authority.
[4] While this level of specificity may
seem trivial or draconian, the genesis of the rule is
attorneys' frequent characterization of the exchange of
vague, combative, and/or terse emails as “meeting and
conferring.” In the court's experience, parties are
more likely to engage in a sincere and ...