(PC) Villery v. Jones ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JARED VILLERY, Case No. 1:15-cv-01360-DAD-HBK 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE OVERDUE MOTION 13 v. TO COMPEL 14 JAY JONES, RICHARD SCHMIDT; (Doc. No. 121) CHRISTOPHER YERTON; RAFAEL 15 ESCARCEGA; DAVID NELSON, 16 Defendants. 17 18 Pending before the court are Plaintiff’s motion for leave to file an overdue motion to 19 compel accompanying Plaintiff’s belated motion to compel directed at Defendant Nelson. (Doc. 20 Nos. 121, 120, respectively). Defendant Nelson timely filed an opposition to Plaintiff’s motion to 21 compel incorporating therein objections to timeliness. (Doc. No. 122). The Court will address 22 only the timeliness issue in this Order. 23 I. Background and Plaintiff’s Claims 24 Plaintiff is proceeding pro se on his First Amended Complaint (“FAC”) as screened. 25 (Doc. Nos. 16, 19, 23). As to Defendant Nelson, the FAC alleges a First Amendment retaliation 26 claim for damages stemming from Defendant Nelson, and other defendants, re-housing Plaintiff 27 with inmate Jones. (Doc. No. 19 at 17-18). 28 1 On January 20, 2021, the court held a status conference to address Plaintiff’s motion to 2 modify the previously extended discovery and scheduling order. (Doc. No. 116). During the 3 hearing, the court noted that the former magistrate judge previously had extended the deadlines in 4 the scheduling order on multiple occasions, and, after holding a hearing, re-opened discovery for 5 90 days and extended the dispositive deadline for 150 days. (See Doc. No. 98). The court further 6 expressed concerns about the age of the case, and the fact that defendant Nelson had a motion for 7 summary judgment pending since June 22, 2020 to which Plaintiff had not yet responded. 8 Plaintiff represented that he did not need to propound further discovery on Defendant Nelson but 9 required the opportunity to file a motion to compel against Defendant Nelson concerning 10 discovery responses that Plaintiff deemed objectionable. During the hearing, the court pointed 11 out that Plaintiff opted to file a 48 type-written page reply to Defendant Nelson’s opposition to 12 Plaintiff’s request to again extend the scheduling order instead of filing a timely motion to 13 compel. Plaintiff assured the court that he was prepared to move against Defendant Nelson’s 14 alleged insufficient responses to his previously propounded discovery. The court did not issue its 15 written order for two weeks, and when it did, the court still afforded Plaintiff fourteen days to 16 deliver his motion to compel to correctional officials for mailing. (Doc. No. 118). Regarding the 17 other defendants unopposed to modifying the scheduling order, Plaintiff’s motion was granted, 18 setting new discovery deadlines as March 22, 2021 and dispositive motions deadlines as May 26, 19 2021. (Id.). Plaintiff failed to tile a timely motion to compel and instead files a motion for leave 20 to accept his untimely motion to compel and his motion to compel the same day. (Doc. Nos. 121, 21 120). The motion to compel is directed at both Requests for Production (“RFP”) and 22 Interrogatories Plaintiff propounded on defendant Nelson. Defendant Nelson maintains that the 23 motion to compel is untimely. (Doc. No. 122). 24 II. Analysis 25 Timeliness and Excusable Neglect 26 Plaintiff acknowledges his motion to compel is untimely. (Doc. No. 121). To overcome 27 the belated filing, Plaintiff argues he had limited time to file the instant motion to compel because 28 he did not receive the February 4, 2021 Order until February 10, 2021. (Id. at 2-3). In response 1 to Plaintiff’s motion, Defendant Nelson maintains his objection to timeliness and points out that 2 discovery was supposed to end two years ago in this case and Plaintiff’s inability to comply with 3 the court’s deadline should result in the denial of his motion. (Doc. No. 122 at 2). Defendant 4 Nelson, however, addresses the merits of the motion in lieu of addressing any of the factors to 5 consider whether Plaintiff has established excusable neglect for the untimely filing. (See Doc. 6 No. 122). In reply, Plaintiff asserts he filed his motion to compel within fourteen days of 7 receiving the order, not from the date of the order. He maintains he deserves a “pass” because he 8 is proceeding pro se and is incarcerated. (Doc. No. 125 at 3). 9 The Court confirms, as Plaintiff acknowledges, Plaintiff submitted the motion to compel 10 after the court-ordered deadline. Here, applying Fed. R. Civ. P. 6, fourteen days from the date of 11 the order made Friday, February 18, 2021 the operative deadline. Houston v. Lack, 487 U.S. 266 12 (1988). Plaintiff signed the motion on February 22, 2021, see Doc. No. 119 at 19, and the Clerk 13 filed the pleading on February 25, 2021. Roberts v. Marshall, 627 F.3d 768, 769 fn. 1 (9th Cir. 14 2010), see also Wolff v. California, 236 F. Supp.3d 1154, 1159 (E.D. Ca. Feb. 22, 2017) (noting 15 courts deem the pro se prisoner’s date of signature on the pleading the date of filing, absent 16 evidence to the contrary, but court need not treat a document as filed on the date it was 17 purportedly submitted to prison staff for mailing when the gap between the date and the postmark 18 date is so long that the claimed submission date appears implausible). 19 Courts frequently deny motions to compel filed after the close of discovery. Green Aire 20 for Air conditioning W.L.L. v. Salem, 2020 WL 58279 *2 (E.D. Ca. Jan. 6, 2020) (noting “the 21 untimeliness of a motion to compel ‘is sufficient ground, standing alone, to deny a discovery 22 motion.’”) (citation omitted) (citing Vanderbusch v. Chokatos, No. 1:13-cv-1422-LJO-EPG (PC), 23 2018 WL 20201488 at *4 (E.D. Ca. June 15, 2018), Pacific Marine Center Inc. v. Philadelphia 24 Indemnity Insurance Co., No. 1:13-cv-00992-DAD-SKO, 2016 WL 110291 at *4 (E.D. Ca. Jan. 25 11, 2016); Watts v. Allstate Indem. Co., No. 2:08-cv-1877 LKK-KJN, 2012 WL 5289314 (E.D. 26 Ca. Oct. 23, 2012)). However, Fed. R. Civ. 6 permits untimely filing if the moving party shows 27 excusable neglect. Excusable neglect rests on relevant circumstances surrounding the party’s 28 failure to meet the deadline. Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 1 395 (1993); see also W.L.L, 2020 WL 58279 (citing Victory v. Barber, No. 1:05-cv-01578-LJO- 2 DLB- PC, 2010 WL 4362813 (E.D. Ca. Oct. 28, 2010)). Factors to consider in determining 3 excusable neglect include: (1) danger of prejudice to opposing party; (2) length of delay and 4 impact on the proceedings; (3) the degree of control the moving party had over the delay, and (4) 5 whether the moving party acted in good faith. Victory, 2010 WL 4362813 *2. 6 As previously noted, Defendants do not address the above factors in their Opposition. 7 The Court will therefore turn to address each of the factors to determine whether Plaintiff has 8 demonstrated excusable neglect. Accepting as true Plaintiff’s statement that he did not receive 9 the written order of the court dated February 4, 2021 for 6 days, Plaintiff asserts he was precluded 10 from timely filing the motion based on the short deadline imposed. Further, as set forth above, 11 using the date Plaintiff signed the motion as the operative filing date since a prison-date stamp is 12 not available, nor did the Court have a prison mail log to consider, Plaintiff’s motion was 13 untimely by four days. 14 The danger of prejudice to Nelson caused by the four-day delay is minimal at best. 15 Similarly, the impact on the proceedings caused by this motion is minimal, particularly when 16 compared to a review of the docket, the length of time Defendant Nelson’s motion for summary 17 judgment has been pending (since June of 2020), and the repeated obstacles presented with 18 discovery in this case. Indeed, Plaintiff had a choice in which motions to file and opted to file a 19 timely motion to determine the sufficiency of Defendant Nelson’s Answers and Objections to his 20 Request for Admissions, so that regard, he exercised control. But, taking Plaintiff’s allegations as 21 true, the delay was in part attributable to mail delays and the Covid-19 pandemic, where he had 22 little to no control. 23 Finally, turning to the good faith element, both during the case management hearing and 24 as memorialized in the court’s written order, the court expressed concern regarding Plaintiff’s 25 diligence, or lack thereof in this case and repeated motions to extend the case management 26 deadlines. Specifically, the court noted it: 27 does not find Plaintiff has exercised diligence in extending the case management deadlines for a fifth time against Nelson, over Nelson’s 28 objection. The Court is persuaded by defense counsel’s arguments, 1 especially the fact that Plaintiff is able to file the instant motion and a forty-page reply to Nelson’s response in opposition, but was unable 2 to pursue other discovery, or move to compel, as to Nelson. 3 | See Doc. No. 118 at 5 (emphasis added). Nonetheless, the docket is undeniable that discovery 4 | has not proceeded in accordance with the spirit and intent of the discovery rules in the Fed. R. 5 || Civ. P. (See Doc. No. 81, order granting in part and denying in part Plaintiff's motion to compel, 6 | Doc. No. 98, order reopening discovery, Doc. No. 105, order granting Plaintiff's reconsideration 7 | of Plaintiff's motion to compel, Doc. No. 135, order granting Plaintiffs reconsideration of g | Plaintiffs motion). 9 Accordingly, it is ORDERED: 10 1. Plaintiff's motion for leave to file an overdue motion to compel (Doc. No. 121) is 11 | GRANTED. 12 2. The Court by separate Order will address the belated Motion to Compel (Doc. No. 13 | 120). 14 5 IT IS SO ORDERED. Dated: __June 24, 2021 Mila Wh fareh Base 17 HELENA M. BARCH-KUCHTA ig UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28