(PC) Cortinas v. Soltanian ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY WILLIAM CORTINAS, Case No. 2:20-cv-01067-JAM-JDP (PC) 12 Plaintiff, ORDER (1) GRANTING IN PART PLAINTIFF’S MOTION FOR AN 13 v. EXTENSION OF TIME AND (2) DENYING PLAINTIFF’S MOTION FOR DISCOVERY 14 JALLA SOLTANIAN, et al., ECF Nos. 34, 35 15 Defendants. 16 17 Plaintiff has filed a motion for a sixty-day extension of time to file a response to defendant 18 Lynch’s motion to dismiss the complaint for failure to state a claim. ECF No. 34. He claims the 19 requested extension is needed to allow him to gather discovery. Id. at 1. Plaintiff has also filed a 20 separate motion requesting discovery related to Lynch’s motion to dismiss. ECF No. 35. 21 As a threshold matter, plaintiff does not need to conduct discovery in order to prepare a 22 response to defendant Lynch’s motion to dismiss, which is brought under Federal Rule of Civil 23 Procedure (“Rule”) 12(b)(6). A motion pursuant to Rule 12(b)(6) tests whether the complaint’s 24 allegations, when accepted as true, are sufficient to state a claim upon which relief may be 25 granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In 26 deciding a motion to dismiss for failure to state a claim, the court generally will not consider 27 extraneous facts or evidence. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th 28 Cir. 2002) (“Ordinarily, a court may look only at the face of the complaint to decide a motion to 1 | dismiss.”). 2 Second, plaintiff's motion requesting discovery, ECF No. 35, is improper. Generally, 3 | discovery requests should not be filed with the court.' Instead, a party seeking discovery is 4 | required to serve his discovery requests on each defendant from whom he seeks discovery. See 5 | Fed. R. Civ. P. 30-36. 6 Accordingly, plaintiff's motion for discovery, ECF No. 35, will be denied. However, in 7 | light of plaintiffs pro se status, his request for an extension of time, ECF No. 34, will be granted 8 || in part to allow him an opportunity to respond to defendant Lynch’s motion. 9 Accordingly, it is hereby ORDERED that: 10 1. Plaintiff's motion for an extension of time, ECF No. 34, is granted in part; 11 2. Plaintiff is granted thirty days from the date of this order in which to file an opposition 12 | or statement of non-opposition to defendant Lynch’s motion to dismiss; and 13 3. Plaintiff's motion for discovery, ECF No. 35, is denied. 14 15 IT IS SO ORDERED. 16 | 1 Sty — Dated: _ February 8, 2021 17 JEREMY D. PETERSON 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 ||§_ ———R_ ' Under the court’s local rules, discovery requests may be filed with the court only when 28 | the requests are at issue. See E.D. Cal. L.R. 250.2-250.4.