Opinion
No. 2:11-cv-1265 KJM AC PS
11-01-2013
TERRYLYN McCAIN, Plaintiff, v. CALIFORNIA HIGHWAY PATROL, ET AL., Defendants.
ORDER
Pending before the court is defendants Mike's Towing Service and Michael Olivarez's ("the Towing defendants") ex parte application for Order to Set Discovery Priority Including Deposition Stay. ECF No. 170. This matter concerns plaintiff's depositions notices sent to the Towing defendants, directing them to appear for depositions on November 4, 2013. California Highway Patrol ("CUP") officers Mangham, Pini and Walling ("the CHP defendants") have filed a partial opposition to the ex parte application. Plaintiff has not filed a response.
This action, which was filed on May 11, 2011, is proceeding against the CHP and Towing defendants based on an allegedly unlawful vehicle stop and towing of plaintiff's car on March 14, 2011. On January 3, 2013, the defendants moved for terminating sanctions in light of plaintiff's discovery abuses. ECF No. 146. Plaintiff did not file an opposition to the motion and did not appear at the hearing. Accordingly, on January 25, 2013, the undersigned issued findings and recommendations recommending that the motion be granted and this action dismissed with prejudice. ECF No. 152.
Following the issuance of the findings and recommendations, the Towing defendants filed a notice of plaintiff's involuntary commitment in a pending criminal action, United States v. McCain, 2:12-cr-0144 MCE. ECF No. 153. The Towing defendants then moved for a temporary stay of the recommendation to dismiss. ECF No. 154. On February 12, 2013, the undersigned vacated the January 25, 2013 findings and recommendations and recommending that the motion for temporary stay be granted. ECF No. 156. On March 21, 2013, the Honorable Kimberly J. Mueller adopted the findings and recommendations, vacated all dates in this matter, stayed this case, and directed plaintiff to submit a status report within fourteen days of her release from commitment. ECF No. 159.
On May 2, 2013, Judge Mueller lifted the stay on notice that plaintiff was released from confinement on March 14, 2013. See ECF No. 163; United States v. McCain, 2:12-cr-0144 TLN, ECF No. 158. Judge Mueller also issued an order to show cause why this case should not be dismissed in light of plaintiff's failure to prosecute and her failure to comply with Judge Mueller's March 21, 2013 order. Although plaintiff filed a "Case Management Status Report" on May 9, 2013, the order to show cause has not yet been ruled on or vacated.
Meanwhile, it appears the parties have attempted to continue with their discovery obligations. See Cranmore Decl. ¶ 10, Exs. A-B. The Towing defendants, for example, sought responses to their previously-propounded discovery requests, see id., Ex. A, and plaintiff served on the various defendants deposition notices, id., Ex. D.
The Towing defendants now move for an order staying the depositions set for Monday, November 4, 2013, on the grounds that (1) Judge Mueller's March 21, 2013 order vacating dates serves as a discovery stay, (2) the status of this case is unclear in light of Judge Mueller's order to show cause, and (3) plaintiff may not obtain discovery from defendants until she had adequately responded to their discovery requests.
Turning to the last argument first, Federal Rule of Civil Procedure 26(d) states that, unless ordered otherwise, the "methods of discovery may be used in any sequence; and discovery by one party does not require any other party to delay its discovery." The Advisory Committee notes following the text of this rule make clear that this provision was meant to "eliminate any fixed priority in the sequence of discovery," and that the priority rule adopted by some courts which confirms priority on the party who first serves notice of taking a deposition is unsatisfactory. See Fed. R. Civ. P. 26(d) advisory committee notes. Nonetheless, the advisory committee notes also grant courts discretion in asserting a priority as dictated by "special considerations." See id.
The court finds that special considerations exist in this case, as set forth more fully in the undersigned's January 25, 2013 findings and recommendations regarding plaintiff's failure to participate in discovery. While the court does not find that Judge Mueller's order vacating dates serves as a discovery stay, the court is aware that Judge Mueller's ruling on the order to show cause may dispose of this case.
The CHP defendants' position is that the ex parte application is premature because this action is in abeyance until Judge Mueller rules on the order to show cause. To avoid confusion caused by the Towing defendants' attempt to also obtain discovery during this interim period, the CHP defendants seek a discovery stay pending resolution of the order to show cause.
Good cause appearing, IT IS HEREBY ORDERED that:
1. The Towing defendants' ex parte application is granted;
2. Discovery in this action is stayed pending Judge Mueller's ruling on the order to show cause. Should Judge Mueller issue an order short of dismissal, the undersigned will set a status conference to discuss the future scheduling of this case.
__________________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE