(PC) Arzaga v. Santiago ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL ARZAGA, No. 2:18-cv-0313 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 E. SANTIAGO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se. Plaintiff’s motions to vacate the court’s 18 scheduling order and to subpoena witnesses are before the court. As discussed below, plaintiff’s 19 motion to vacate the scheduling order is granted; his motion to subpoena witnesses is denied. 20 Background 21 On July 2, 2020, the undersigned issued a discovery and scheduling order which provided 22 that discovery would close on November 3, 2020. (ECF No. 48.) On December 1, 2020, 23 plaintiff’s motion to stay discovery was denied, and the discovery deadline was extended until 24 March 1, 2021, solely for the purpose of locating and serving defendants Santiago, Victoriano, 25 and Haluik, and to resolve any motion to compel further responses to plaintiff’s August 15, 2020 26 request for production of documents. (ECF No. 64.) The court confirmed that in all other 27 respects, the July 2, 2020 scheduling order remained in effect; discovery is closed, and the pretrial 28 motions deadline was extended to June 1, 2021. (Id.) 1 On March 11, 2021, the court noted that none of plaintiff’s requests for admissions 2 attempted to obtain information concerning the location of defendants E. Santiago, Haluik and A. 3 Victoriano, and therefore plaintiff’s discovery requests did not fall within the narrow exception 4 provided in the December 1, 2020 order (ECF No. 64). (ECF No. 72 at 3.) 5 On March 11, 2021, the court also extended plaintiff’s time for service of process on 6 defendants Santiago, Haluik, and Victoriano for ninety days. Fed. R. Civ. P. 4(m). On March 11, 7 2021, the court ordered E-Service on defendants E. Santiago, Haluik, and Victoriano. (ECF No. 8 73.) On April 1, 2021, the CDCR Notice of E-Service Waiver was filed, indicating the CDCR 9 would not waive service for such defendants. (ECF No. 77.) Defendant E. Santiago was 10 identified and located; the service packet was forwarded to the U.S. Marshal on April 1, 2021. 11 (ECF No. 78.) To date, no return of service has yet been filed by the U.S. Marshal. However, as 12 to defendants Haluik and A. Victoriano, despite checking with litigation coordinators at CHCF, 13 CCHCS, PIP or Headquarters HR Personnel, such individuals could not be identified or located. 14 (ECF No. 77.) 15 On June 1, 2021, defendants filed a statement of non-opposition to plaintiff’s request to 16 vacate the scheduling order, arguing it would be inappropriate for the case to continue piecemeal, 17 but requested that a time limit be placed on plaintiff’s efforts to locate and serve process on 18 defendants E. Santiago, Haluik, and Victoriano. 19 Motion to Vacate Scheduling Order 20 Standards 21 “The district court is given broad discretion in supervising the pretrial phase of litigation.” 22 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation and internal 23 quotation marks omitted). Rule 16(b) provides that “[a] schedule may be modified only for good 24 cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The schedule may be modified 25 ‘if it cannot reasonably be met despite the diligence of the party seeking the extension.’” 26 Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting 27 Johnson, 975 F.2d at 607). 28 //// 1 Discussion 2 Plaintiff claims that there is an ongoing investigation by the U.S. Department of Justice 3 (“DOJ”) and the Federal Bureau of Investigation (“FBI”), File No. 62-SC-0. (ECF No. 80 at 2.) 4 Plaintiff seeks to vacate the scheduling order until such investigation is completed. However, 5 plaintiff provided no information as to when such investigation began, or when such investigation 6 might be completed. The court is unwilling to delay this case indefinitely. 7 Good cause appearing, plaintiff’s motion to vacate the scheduling order is partially 8 granted, with the condition that discovery remains closed as to defendants Gisler and Pak. 9 Plaintiff is granted ninety days from the date of this order to serve defendant E. Santiago, and to 10 identify, locate, and serve process on defendants Haluik and April R. Victoriano. Plaintiff is 11 cautioned that, as was explained in the July 2, 2020 order, it is incumbent upon plaintiff to 12 identify and locate the individuals he named as defendants and to provide additional information 13 to serve such defendants. (ECF No. 47.) Specifically, plaintiff must provide additional 14 information as to the identity and location of defendants Haluik and April R. Victoriano. 15 Motion to Subpoena 16 Plaintiff’s motion is not clear. He requests a “subpoena of the following expert witnesses 17 via a post summary judgment:” from the DOJ/FBI - Robert Tripp, Supervisor of Special Agents; 18 and Special Agents Sean Ragan and Monica M. Miller; from the Office of the Inspector General 19 (“OIG”) Robert A. Barton; and from the Office of Law Enforcement Support, Chief Ken Baird. 20 (ECF No. 79.) However, as noted above, the DOJ/FBI investigation is not yet complete. 21 Moreover, plaintiff fails to set forth specific findings from any DOJ/FBI, OIG or law enforcement 22 investigation to demonstrate that the testimony of a particular individual is relevant or required. 23 Plaintiff is advised that the mere investigation of plaintiff’s claims is insufficient to demonstrate 24 such putative witnesses have relevant testimony. If plaintiff is attempting to subpoena the 25 testimony of such witnesses for trial, his motion is premature because no trial or other court 26 proceeding has been scheduled. Moreover, if plaintiff intends to file a dispositive motion in the 27 future based on any such investigation, it is likely that the written report from such investigation 28 would be the appropriate evidence for plaintiff to submit in support of such motion. ] For all of the above reasons, plaintiff's motion is denied without prejudice. 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiffs motion to vacate the scheduling order (ECF No. 80) is partially granted. 4 2. Deadlines set in the scheduling order and revised scheduling order (ECF Nos. 48, 64) 5 || are vacated, except that discovery as to defendants Gisler and Pak remains closed. 6 3. Plaintiff granted an additional ninety days from the date of this order to serve 7 || defendant E. Santiago, and to identify, locate and serve defendants Haluik, and April R. 8 || Victoriano; and 9 4. Plaintiffs motion to subpoena (ECF No. 79) is denied without prejudice. 10 | Dated: June 9, 2021 Aectl Aharon 12 KENDALL J.NE UNITED STATES MAGISTRATE JUDGE 13 14 |] /arza0313.vac 15 16 17 18 19 20 21 22 23 24 25 26 27 28