Opinion
No. CIV S-05-1556-JAM-CMK-P.
October 29, 2008
ORDER
Plaintiff, proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's notice that he did not receive the court's June 13, 2008 scheduling order (Doc. 64).
Defendants filed an answer to the complaint on June 4, 2008. The court then issued a scheduling order on June 13, 2008, setting forth a schedule for this case to proceed to trial. The schedule, as set forth in the court's order, is for discovery to proceed until November 14, 2008, and all dispositive motions to be filed within 60 days after that date. Plaintiff has informed the court he never received a copy of that order.
The scheduling order was sent to plaintiff at his address of record at the time, on St. Andrews Place in Los Angeles. The court then issued two other orders which were returned to the court as undeliverable. The scheduling order was not returned. Plaintiff informed the court of his change of address, to Bauchet Street in Los Angeles, on July 10, 2008. Accordingly, the two orders which were returned to the court were resent to plaintiff's new address. Plaintiff then informed the court of another change of address, to RJ Donovan Correction Facility, on September 25, 2008. Parties appearing pro se are required to keep the court informed of any address change. See Local Rule 83-182(f). Absent a notice of a change in address, service of documents at plaintiff's prior address is fully effective. See id. However, as plaintiff claims he did not receive a copy of the court's scheduling order filed June 13, 2008, the Clerk of the Court will be directed to provide plaintiff a copy thereof.
These two orders were issued by the District Judge adopting the findings and recommendations to dismiss defendants Minyard, Whelan, Gonzales and Smith. See Docs. 56 57.
Plaintiff has also asked the court to update his mailing CDCR number. The Clerk of the Court will be directed to update plaintiff's number.
Plaintiff indicates that he was unaware that discovery would end on November 14, 2008. Discovery has been open since May 3, 2007 (Doc. 27). Discovery was original due by August 24, 2007. However, in September 2007, the court vacated the remaining dates in the scheduling order due to finding service appropriate on additional defendant (Doc. 37). Discovery has remained opened ever since. Plaintiff therefore had a year and a half to conduct any necessary discovery. Even assuming plaintiff did not receive the court's June 13, 2008 order, plaintiff cannot now claim he was unaware that discovery was opened. All discovery requests were required to be serve 60 days prior to the discovery cut-off date. Accordingly, no new discovery may be propounded at this time. If plaintiff has outstanding discovery requests that defendants are not responding to, his remedy is to bring a motion to compel.
The court notes that in August 2007 there were discovery issues surrounding plaintiff's deposition. Clearly plaintiff was aware that discovery was opened.
To the extent plaintiff is claiming he does not have sufficient time to prepare for dispositive motions, that deadline is still more than 10 weeks away. That should be sufficient time for plaintiff to prepare a dispositive motion, and plaintiff has not shown good cause for an extension of that deadline. To the extent plaintiff is concerned about filing a status report, if the court orders status reports, the parties will be directed as to what should be included in the reports.
Dispositive motions must be filed within 60 days of the discovery cutoff date of November 14, 2008.
An example of a dispositive motion is a motion for summary judgment.
Accordingly, IT IS HEREBY ORDERED that:
1. The Clerk of the Court is directed to send plaintiff a copy of the court's June 13, 2008 order (Doc. 55);
2. The Clerk of the Court is directed to update plaintiff's mailing CDCR number; and
3. The dates in the scheduling order (Doc. 55) are confirmed.
ORDER
Plaintiff, proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. On September 5, 2007, the court vacated the remaining dates in the scheduling order, and discovery remained open, due to several unserved defendants. The court found service appropriate for three additional defendants, who have now been served and who have appeared in this action by way of an answer filed June 4, 2008. Accordingly, the court now finds it appropriate to reset a schedule for this litigation pursuant to Rule 16(b) of the Federal Rule of Civil Procedure.1. Discovery has remained opened. As previously ordered, discovery requests shall be served by the party seeking the discovery on all parties to the action. Discovery requests shall not be filed with the court except when required by Eastern District of California Local Rules 30-250(a), 33-250(c), 34-250(c), and/or 36-250(c). Improperly filed discovery requests will be disregarded;
2. Responses to written discovery requests shall be due forty-five days after the request is served;
3. Pursuant to Federal Rule of Civil Procedure 30(a), defendant(s) may depose plaintiff and any other incarcerated witness upon condition that, at least 14 days before such a deposition, all parties are served with the notice required by Federal Rule of Civil Procedure 30(b)(1);
4. If disputes arise about the parties' obligations to respond to requests for discovery, the parties shall comply with all pertinent rules, including Federal Rules of Civil Procedure 5, 7, 11, 26, and 37 and Eastern District of California Local Rules 5-134, 5-135, 6-136, 7-130, 7-131, 11-110, 43-142, and 78-230(m); unless otherwise ordered, Local Rule 37-251 shall not apply. Filing a discovery motion that does not comply with all applicable rules may result in imposition of sanctions, including but not limited to denial of the motion;
It appears that plaintiff has been released from prison. Accordingly, at any time during the pendency of this case, any party may request application of other provisions of Local Rule 78-230 in lieu of Local Rule 78-230(m). Until such request is received and granted, Local Rule 78-230(m) will continue to govern all motions to dismiss, motions for summary judgment, motions concerning discovery, and motions pursuant to Rules 7, 11, 12, 15, 41, 55, 56, 59 and 60 of the Federal Rules of Civil Procedure.
5. The parties may conduct discovery until November 14, 2008. Any motions necessary to compel discovery shall be filed by that date. All requests for discovery pursuant to Fed.R.Civ.P. 30, 31, 33, 34, and 36 shall be served not later than 60 days prior to this discovery cut-off date;
6. All dispositive motions shall be filed within 60 days after the discovery cut-off date specified above;
7. Unless otherwise ordered, all motions shall be briefed pursuant to Local Rule 78-230(m), and failure to oppose such a motion in a timely manner may be deemed a waiver of opposition to the motion; and
8. At a later stage in the proceedings, the parties will be required to submit reports on the status of this litigation. Following submission of status reports from all parties, the court will issue a final scheduling order.
IT IS SO ORDERED.