Opinion
No. CV 09-1760-PHX-RCB.
June 24, 2011
ORDER
Introduction
Currently there are three matters pending before the court, all of which pertain to defendants' recent service upon plaintiff of supplemental discovery responses. After defendants filed their Notices of Service of those responses, plaintiff filed three separate documents, which he styles as "Response[s] in Opposition[]" to defendants' various supplemental discovery responses. Resps. (Docs. 128; 132 and 134). In each of these Responses, plaintiff "requests" court orders "suppressing" defendants' supplemental discovery responses; and "precluding [them] from attempting to re-open discovery in this matter." Resp. (Doc. 128) at 1; Resps. (Docs. 132 and 134) at 2. As to defendants' first filed Notice (Doc. 126), plaintiff also "requests the Court enjoin Defendants from attempting to submit any new or supplemental discovery that was not disclosed prior to the January 18, 2011 close of discovery." Reply (Doc. 135) at 2 (emphasis added).
Given the relief which plaintiff is seeking, the court is treating his "Responses in Opposition" as motions. Indeed, at least with respect to defendants' first Notice, the parties seem to be of the same view. As to that Notice and plaintiff's "Response" thereto, defendants filed their own "response[,]" asserting that "`suppression' of [their] Supplemental Response" as to the interrogatories is "unnecessary." Defs' Resp. (Doc. 133) at 2:12-13. Plaintiff, in turn, filed a "Reply" to that Response. See Reply (Doc. 135). To be sure, that is the only "Response" defendants filed in connection with their supplemental discovery disclosures. Even so, there is no prejudice to defendants if the court deems plaintiff's "Responses in Opposition" to be motions because, as explained below, the court is denying plaintiff's requested relief.
Background
The Rule 16 Scheduling and Discovery Order ("the Rule 16 Order") in this case provides, among other things, for the completion of discovery, including "supplement[ing] all discovery, . . . on or before January 18, 2011 ." Ord. (Doc. 39) at 2:14 and 16 (emphases in original). On May 24, 2011, defendants Stansel and Behrens filed a "Notice of Service of Discovery to Plaintiff" pertaining to their "Supplemental Response to Plaintiff's First Non-Uniform Interrogatories[.]" Not. (Doc. 126) at 15-16; and at 22-23 (emphasis in original).
Plaintiff challenges service of that supplemental discovery response on procedural and substantive grounds. Procedurally, he argues that that supplemental response is untimely given the January 18, 2011, discovery cut-off date. Substantively, plaintiff asserts that defendants are not supplementing their response to his first non-uniform interrogatories, but rather they are "completely chang[ing] their original response[.]" Id. Plaintiff speculates that defendants made that asserted "change . . . either because [the original response] was false or because it conflicts with statements other, [sic] current ICE [United States Immigration and Customs Enforcement] and EDC [Eloy Detention Center] staff . . . recently made to [him]." Id.
Presuming that plaintiff is referring to Interrogatory No. 1, defendants explain that on May 11, 2011, they received a letter from plaintiff "requesting confirmation of [their] original response" to that interrogatory. Resp. (Doc. 133) at 1:27-2:1. As defendants explain it, after becoming "aware" of and "agree[ing] with plaintiff as to the need for "clarification[,]" defendants "supplemented their original response" to Interrogatory No. 1. Id. at 2:2-3. Arguing that "`suppression'" of this supplemental response is "unnecessary[,]" defendants stress that plaintiff requested that response, which "clarifi[es]" an issue; hence their supplemental response was "appropriate." Id. at 2:12-13; and at 2:5-6. Defendants also correctly point out that supplementation of their response was "appropriate and timely pursuant to Fed.R.Civ.P. 26(e), which requires supplementation of interrogatory responses." Id. at 2:608. Lastly, defendants contend that if plaintiff believes that their supplemental response to Interrogatory No. 1 is "contrary" to their original response, that is a "credibility" issue, properly left for trial. Id. at 2:9-10.
Despite indicating that a copy of plaintiff's letter is attached to defendants' response, it is not. Plaintiff did include a copy of that letter though as exhibit C to his reply.See Reply (Doc. 135), exh. C thereto.
In his reply, plaintiff takes issue with defendants' characterization of both their supplemental discovery response and his letter dated May 6, 2011. As to the former, plaintiff asserts that it was "neither supplemental nor did it clarify anything." Reply (Doc. 135) at 1. Rather, from plaintiff's standpoint, that supplemental response "seeks to supersede the original[,]" and "does not even address the subject of the interrogatory[.]" Id. (citation omitted). Insofar as plaintiff's May 6th letter is concerned, plaintiff notes, as that letter reflects, that he was "merely request[ing] counsel to confirm whether the original response to the interrogatory was false[.]"Id. at 2 (citing exh. C thereto).
On June 3, 2011, defendants filed another "Notice of Service" stating that on May 27, 2011, they had served plaintiff with their "Second Supplemental Disclosure Statement[.]" Id. at 1:19. Also on that date, June 3, 2011, defendants filed a "Notice of Service" upon plaintiff of their "Third Supplemental Disclosure Statement[.]" Not. (Doc. 131) at 1:12; and at 1:19.
Plaintiff filed two separate but identical responses to those two Notices. Plaintiff contends that given the January 18, 2011, discovery deadline, those two supplemental disclosure statements are untimely. As noted at the outset, plaintiff, therefore, "requests . . . suppress[ion]" of those two statements, and "an Order precluding Defendants from continuing to attempt to re-open discovery in this matter." Resps. (Docs. 132 and 134) at 2.
In the midst of these discovery disputes, after this court granted in part and denied in part defendants' summary judgment motion (Doc. 127), on June 2, 2011, the Honorable Edward C. Voss, United States Magistrate Judge ordered the withdrawal of the reference, indicating "that this matter is now ready for trial." Doc. 129.
Discussion
I. Service of Supplemental Discovery Responses
In addition to setting a discovery cutoff date of January 18, 2011, the Rule 16 Order herein "remind[s]" the parties that it "governs and supersedes the `30 days before trial' disclosure deadline contained in Fed.R.Civ.P. 26(a)(3)." Ord. (Doc. 39) at 2:16-18, ¶ 6. In relevant part that Rule 16 order thus states:
(1) failure to timely supplement Rule 26(a) disclosures, including witnesses and exhibits for trial, (2) failure to timely supplement responses to any valid discovery requests, . . . may result in the exclusion of such evidence at trial[.]"Id. at 2:18-3:1 (emphasis added). Perhaps those provisions form the basis for plaintiff's argument that the court should suppress as untimely defendants' supplemental discovery responses. That order cannot be read in isolation, however. It must be read in conjunction with Fed.R.Civ.P. 26(e), which governs supplementing discovery disclosures and responses. Subsection (1) of that Rule states:
A party who has made a disclosure under Rule 26(a) — or who has responded to an interrogatory, request for production, or request for admission — must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or
(B) as ordered by the court.
Fed.R.Civ.P. 26(e)(1) (emphasis added). Especially given the discretionary language of the Rule 16 Order and the mandatory language of Rule 26(e)(1), the court finds that the two are not at odds. Thus, because on the record as presently constituted it appears that defendants were fulfilling their continuing obligation to supplement under Rule 26(e)(1), the court denies plaintiff's "motions" to suppress as untimely defendants' supplemental discovery responses. The court denies those motions without prejudice, however.
Further, the court agrees with defendants that insofar as plaintiff is challenging the substance of their responses to his First Non-Uniform Interrogatories, plaintiff may explore that issue at trial.
II. Proposed Joint Final Pretrial Order
Because this action is now ready for trial, the court hereby ORDERS that plaintiff pro se and the attorney or attorneys who will be responsible for the trial of this lawsuit to prepare a proposed Joint Final Pretrial Order and lodge it with the Clerk of the Court no later than six (6) weeks from the filing date of this order.
Although it is plaintiff pro se's responsibility to ensure that the proposed Joint Final Pretrial Order is properly prepared and timely lodged, defendants shall cooperate with plaintiff pro se to ensure that such Order is properly prepared and timely lodged. That proposed Joint Final Proposed Pretrial Order shall be signed by plaintiff pro se and defense counsel. Plaintiff pro se may authorize defense counsel to sign on his behalf.
The content of the proposed Joint Final Pretrial Order shall include, but is not limited to, that prescribed in the form of the proposed Joint Final Pretrial Order attached hereto.
Pursuant to Fed.R.Civ.P. 16(d) and 37(c), the court will not allow the parties to modify the Joint Final Pretrial Order or introduce at trial any exhibits, witnesses, or other information or to make any objections to exhibits that were not previously specified and/or disclosed as directed by the Court in the Joint Final Pretrial Order, except to prevent manifest injustice.Galdamez v. Potter, 415 F.3d 1015, 1020 (9th Cir. 2005).
After the lodging of the signed proposed Joint Final Pretrial Order, at a date to be set by the court, the parties shall participate telephonically in a Pretrial Conference to discuss that Proposed Order. Following that Pretrial Conference, the court will issue the Final Pretrial Order and set a trial date for this action.
In light of the foregoing, the court hereby denies as moot "Defendants [sic] Motion for Extension of Time to File Proposed Joint Pretrial Order" (Doc. 138).
As an aside, the court observes that this motion was not necessary because, despite what defendants contend, the July 26, 2010, Rule 16 Scheduling and Discovery Order did not include a time frame for filing the Proposed Joint Pretrial Order.
For the reasons set forth above, IT IS ORDERED that:
(1) "Plaintiff's Response in Opposition to Defendants' Supplemental Response to Plaintiff's First Non-Uniform Interrogatories" (Doc. 128), which the court deems to be a motion to suppress, is DENIED without prejudice;
(2) "Plaintiff's Response in Opposition to Defendants' Second Supplemental Disclosure Statement" (Doc. 132), which the court deems to be a motion to suppress, is DENIED without prejudice;
(3) "Plaintiff's Response in Opposition to Defendants' Third Supplemental Disclosure Statement" (Doc. 134), which the court deems to be a motion to suppress, is DENIED without prejudice;
(4) "Defendants [sic] Motion for Extension of time to File Proposed Joint Pretrial Order" (Doc. 138) is DENIED as moot; and
(5) the parties shall lodge a Proposed Joint Final Pretrial Order in accordance herewith by no later than six (6) weeks from the filing date of this order.
FINAL PRETRIAL ORDER
This Final Pretrial Order supersedes the pleadings and shall govern the trial and further proceedings in this case.
A. STATEMENT OF JURISDICTION. Cite the statute(s) which gives this Court jurisdiction:
(example — Jurisdiction in this case is based on diversity of citizenship under Title 28 U.S.C. § 1332.)
B. NATURE OF ACTION. Provide a concise statement of the type of case, the cause of the action, and the relief sought:
(example — This is a products liability case wherein the plaintiff seeks damages for personal injuries sustained when he fell from the driver's seat of the forklift. The plaintiff contends that the forklift was defectively designed and manufactured by the defendant and the defects were a producing cause of his injuries and damages.)
C. CONTENTIONS OF THE PARTIES. With respect to each count of the complaint, counterclaim or cross-claim, and to any defense, affirmative defense, or the rebuttal of a presumption where the burden of proof has shifted, the party having the burden of proof shall list the elements or standards that must be proved in order for the party to prevail on that claim or defense:
(example — In order to prevail on this products liability case, the plaintiff, must prove the following elements . . .)
example — In order to defeat this products liability claim based on the statute of limitations or repose, the defendant must prove the following elements . . .
D. STIPULATION AND UNCONTESTED FACTS
E. CONTESTED ISSUES OF FACT AND LAW (See and refer to subpart C above)
F. LIST OF WITNESSES. Include or separately attach a list(s) of witnesses, identifying each as either plaintiff's or defendants' witnesses and indicating whether the witness is a fact or expert witness.
G. LIST OF EXHIBITS. Include or separately attach a list(s) of numbered exhibits, identifying each as either plaintiff's or defendants', with a description of each containing sufficient information to identify the exhibit, indicating whether there is an objection to its admission and, if so, the nature of the objection(s) anticipated. The actual exhibits must be later marked according to instructions which will be provided at the final pre-trial conference.
H. LIST OF DEPOSITIONS. Include or separately attach those portions of depositions that will be read at trial by each party listed by page and line number, whether there is an objection to each passage and, if so, the nature of the objection.
I. MOTIONS IN LIMINE. Motions in Limine are intended to encompass only significant evidentiary issues and are generally discouraged. Such motions, if allowed, shall be filed by __________, 20__. Any responses shall be filed by _________, 20__. No replies may be filed without permission of the court. Motions in Limine are deemed submitted without argument.
J. LIST OF ANY PENDING UNRULED UPON MOTIONS
K. PROBABLE LENGTH OF TRIAL
For a Bench Trial
L. PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW shall be simultaneously filed by ____________________, 20__.
For a Jury Trial
M. INSTRUCTIONS. The parties shall seek to stipulate to jury instructions and any stipulated jury instructions shall be filed _________________, 20__. Instructions which are not agreed upon shall include citation to authority which shall not exceed one page per instruction and shall be filed by __________________, 20__. Objections to any non-agreed upon instruction shall include citation to authority which shall not exceed one page per instruction and may be filed by _______________, 20__.
N. VOIR DIRE QUESTIONS. Any proposed voir dire questions shall be filed by ____________, 20__.
O. CERTIFICATIONS. Plaintiff, pro se, and defense counsel in this action do hereby certify and acknowledge the following:
1. All discovery has been completed.
2. The identity of each witness has been disclosed to plaintiff, pro se, and defense counsel.
3. Each exhibit listed herein (a) is in existence; and (b) has been disclosed and shown to plaintiff, pro se, and defense counsel.
APPROVED AS TO FORM AND CONTENT:
____________________ _________________________ Plaintiff, pro se Attorney for Defendants THIS JOINT PRETRIAL ORDER IS HEREBY APPROVED AND TRIAL IS SET FOR ___________, 20__ AT 9:00 A.M., COURTROOM 606, Sixth Floor, Sandra Day O'Connor United States Courthouse, 401 W. Washington St., Phoenix, Arizona; COUNSEL SHALL APPEAR AT 8:30 A.M.DATED this ____ day of ________________, 2011.