(PC) Merriman v. Lowry ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DOMINIQUE MERRIMAN, No. 2: 19-cv-1445 TLN KJN P 12 Plaintiff, 13 v. ORDER 14 M. LOWRY, et al.,, 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion June 26, 2020 motion to 19 compel and for an extension of time to conduct discovery. (ECF No. 37.) Also pending is 20 plaintiff’s July 8, 2020 motion to modify the scheduling order. (ECF No. 39.) 21 For the reasons stated herein, plaintiff’s motions are granted in part and denied in part. 22 Background 23 On January 23, 2020, the undersigned issued a scheduling order setting the discovery 24 deadline as May 22, 2020, and the dispositive motion deadline as August 7, 2020. (ECF No. 25.) 25 The scheduling order stated that motions to compel shall be filed by May 22, 2020, and that all 26 discovery requests pursuant to Federal Rules of Civil Procedure 31, 33, 34 or 36 shall be served 27 not later than sixty days prior to that date. (Id. at 5.) 28 //// 1 On April 7, 2020, the undersigned granted defendants’ April 1, 2020 request for extension 2 of time to serve responses to plaintiff’s discovery requests. (ECF No. 28.) The undersigned 3 ordered defendants to serve their responses to plaintiff’s request for productions (set one) on or 4 before May 1, 2020. (Id.) The undersigned ordered defendants to serve their responses to 5 plaintiff’s interrogatories (set one) on or before May 6, 2020. (Id.) 6 In the April 7, 2020 order, the undersigned also ordered that “the parties may conduct 7 discovery until June 21, 2020; any motion to compel discovery shall be filed by that date; all 8 other deadlines in the discovery and scheduling order (ECF No. 25) remain in effect.” (Id.) 9 On June 9, 2020, the undersigned granted plaintiff’s May 4, 2020 request for extension of 10 time to serve defendants with his response to defendants’ request for production of documents. 11 (ECF No. 33.) The undersigned ordered plaintiff to serve his responses within twenty-one days 12 from the date of this order. (Id.) 13 On June 18, 2020 defendants filed a motion to modify the scheduling order. (ECF No. 14 35.) Defendants requested a ninety days extension of the discovery and dispositive motion 15 deadlines on the grounds that they were unable to depose plaintiff until August 2020 based on the 16 COVID-19 outbreak. (Id.) 17 On June 23, 2020, the undersigned granted in part and denied in part defendants’ June 18, 18 2020 motion to modify the scheduling order. (ECF No. 36.) The undersigned ordered that 19 defendants may conduct plaintiff’s deposition on or before September 19, 2020. (Id.) The 20 undersigned denied defendants’ motion to extend the discovery cut-off date as to other discovery. 21 (Id.) The undersigned extended the dispositive motion deadline to December 5, 2020. (Id.) 22 Plaintiff’s Pending Motions 23 Legal Standard 24 Pursuant to Federal Rule of Civil Procedure 16(b), a scheduling order “may be modified 25 only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Good cause requires 26 a showing of due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 27 1992). 28 //// 1 Analysis 2 In his June 26, 2020 motion to compel, plaintiff requests that the court compel defendant 3 Lowry to respond to the second set of interrogatories that plaintiff served on May 11, 2020 4 through the institutional mailing system. (ECF No. 37.) Plaintiff alleges that defendant failed to 5 respond to these interrogatories. (Id.) Plaintiff also requests that the discovery deadline be 6 extended by thirty days because he is waiting for his mental health records that he requested from 7 the record office. (Id.) Plaintiff alleges that he will have to provide defendants with these records 8 in order to supplement his previous response to defendants’ request for production of documents. 9 (Id.) 10 In his July 8, 2020 motion to modify the scheduling order, plaintiff alleges that on or 11 around May 9, 2020, he sent defendant Lowry a second set of interrogatories and, on or around 12 May 15, 2020, he sent defendant Lowry a second set of requests for production of documents. 13 (ECF No. 39.) Plaintiff alleges that he received a letter from defense counsel stating that they 14 would not be providing plaintiff with responses to his second set of interrogatories and second set 15 of requests for production of documents due to the expiration of the discovery deadline. (Id.) In 16 the July 8, 2020 motion to modify the scheduling order, plaintiff requests that the court extend the 17 discovery deadline by sixty days and order defendants to respond to his second set of discovery 18 requests. (Id.) 19 On July 9, 2020, defendants filed an opposition to plaintiff’s June 26, 2020 motion to 20 compel.1 (ECF No. 40.) Defendants argue that plaintiff’s second set of interrogatories, served on 21 May 11, 2020 are untimely. Defendants argue that in the April 7, 2020 order, the undersigned 22 reset the discovery deadline to June 21, 2020, but left all other deadlines in the discovery and 23 scheduling order intact. (Id.) Defendants state that the parties therefore had until April 22, 2020 24 to serve any written discovery. (Id.) Defendants also state that, pursuant to the scheduling order, 25 written responses to discovery are due forty-five days after the request is served. (Id.) 26 1 Defendants have not filed an opposition to plaintiff’s July 8, 2020 motion to modify the 27 scheduling order. However, the undersigned considers defendants’ opposition to plaintiff’s June 26, 2020 motion to compel in evaluating plaintiff’s July 8, 2020 motion to modify the scheduling 28 order. 1 Defendants state that their response to plaintiff’s interrogatories, served on May 11, 2020, were 2 due on June 29, 2020, which is eight days after the discovery cut-off. (Id.) 3 On July 21, 2020, plaintiff filed a reply to defendants’ opposition to his motion to compel. 4 (ECF No. 42.) Plaintiff alleges that he served his untimely discovery requests because he was 5 confused about the discovery cut-off deadline. Plaintiff alleges that when the court re-set the 6 discovery cut-off deadline to June 21, 2020, in the order filed April 7, 2020, he thought that he 7 had until June 21, 2020 to serve discovery requests. Plaintiff alleges that the orders modifying 8 the discovery cut-off dates caused him not to comprehend that written discovery requests were to 9 be made not later than sixty days before the discovery cut-off date. 10 The undersigned is not persuaded by plaintiff’s alleged misunderstanding of the discovery 11 deadlines. The January 23, 2020 scheduling order clearly stated that all discovery requests were 12 to be served not later than sixty days prior to the discovery cut-off deadline. The April 7, 2020 13 order resetting the discovery deadline to June 21, 2020, clearly stated that any motions to compel 14 must be filed by that date and that “all other deadlines in the discovery and scheduling order (ECF 15 No. 25) remain in effect.” Moreover, in his May 4, 2020 motion for extension of time, plaintiff 16 stated that he understood that responses to discovery requests were due forty-five days after the 17 request was served, suggesting that plaintiff either knew or should have known that the responses 18 to his second set of discovery requests would be due after the June 21, 2020 discovery cut-off 19 date. 20 For the reasons discussed above, the undersigned finds that plaintiff has not shown good 21 cause to modify the scheduling order. Plaintiff’s request that defendants be ordered to respond to 22 his untimely discovery requests is denied. 23 Plaintiff’s motion for an extension of time to supplement his response to defendants’ 24 request for production of documents is granted. Plaintiff shall serve defendants with his 25 supplemental response to the request for production of documents within thirty days of the date of 26 this order. 27 //// 28 //// MAO 2 LUV EIT PINON IN VVC St PO Oe Oy VI 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff's motion to compel (ECF No. 37) and motion for extension of time (ECF 3 No. 39), requesting that defendants be ordered to respond to his untimely second set of 4 discovery requests, are denied; 5 2. Plaintiffs motion for an extension of time to serve a supplemental response to 6 defendants’ request for production of documents is granted; plaintiff shall serve 7 defendants with his supplemental response to the request for production of documents 8 within thirty days of the date of this order. 9 | Dated: August 4, 2020 0 Foci) Aharon 11 KENDALL J. NE Merr1445.ord UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28