Opinion
Case No. 2:20-cv-01067-JAM-JDP (PC)
02-08-2021
LARRY WILLIAM CORTINAS, Plaintiff, v. JALLA SOLTANIAN, et al., Defendants.
ORDER (1) GRANTING IN PART PLAINTIFF'S MOTION FOR AN EXTENSION OF TIME AND (2) DENYING PLAINTIFF'S MOTION FOR DISCOVERY ECF Nos. 34, 35
Plaintiff has filed a motion for a sixty-day extension of time to file a response to defendant Lynch's motion to dismiss the complaint for failure to state a claim. ECF No. 34. He claims the requested extension is needed to allow him to gather discovery. Id. at 1. Plaintiff has also filed a separate motion requesting discovery related to Lynch's motion to dismiss. ECF No. 35.
As a threshold matter, plaintiff does not need to conduct discovery in order to prepare a response to defendant Lynch's motion to dismiss, which is brought under Federal Rule of Civil Procedure ("Rule") 12(b)(6). A motion pursuant to Rule 12(b)(6) tests whether the complaint's allegations, when accepted as true, are sufficient to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In deciding a motion to dismiss for failure to state a claim, the court generally will not consider extraneous facts or evidence. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002) ("Ordinarily, a court may look only at the face of the complaint to decide a motion to dismiss.").
Second, plaintiff's motion requesting discovery, ECF No. 35, is improper. Generally, discovery requests should not be filed with the court. Instead, a party seeking discovery is required to serve his discovery requests on each defendant from whom he seeks discovery. See Fed. R. Civ. P. 30-36.
Under the court's local rules, discovery requests may be filed with the court only when the requests are at issue. See E.D. Cal. L.R. 250.2-250.4. --------
Accordingly, plaintiff's motion for discovery, ECF No. 35, will be denied. However, in light of plaintiff's pro se status, his request for an extension of time, ECF No. 34, will be granted in part to allow him an opportunity to respond to defendant Lynch's motion.
Accordingly, it is hereby ORDERED that:
1. Plaintiff's motion for an extension of time, ECF No. 34, is granted in part;
2. Plaintiff is granted thirty days from the date of this order in which to file an opposition or statement of non-opposition to defendant Lynch's motion to dismiss; and
3. Plaintiff's motion for discovery, ECF No. 35, is denied. IT IS SO ORDERED. Dated: February 8, 2021
/s/_________
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE