Opinion
No. CIV S-06-2271-MCE-CMK-P.
October 1, 2007
ORDER
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court are: (1) plaintiff's motion to compel responses to discovery requests (Doc. 22); and (2) defendant's motion for modification of the scheduling order (Doc. 28).
In plaintiff's motion, he seeks an order compelling defendant to respond to discovery requests. With his motion, plaintiff filed a copy of requests for production served on June 24, 2007, a copy of interrogatories served on July 3, 2007, and a copy of requests for admissions served on July 3, 2007. Plaintiff asserts that defendant has not served any responses to these three discovery requests.
Federal Rule of Civil Procedure 37(d) provides, in pertinent part, as follows:
If a party . . . fails . . . to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or . . . to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraph (A), (B), and (C) of subdivision (b)(2) of this rule.
Further, the rule provides that the failure to serve timely responses to discovery may not be excused on the ground that the discovery sought is objectionable unless the party so asserting has a motion for a protective order pending. See Fed.R.Civ.P. 37(d). Here, plaintiff has provided the court with the discovery requests at issue, along with proofs of service thereof, and has declared that defendant has not served any responses. The court will, therefore, grant plaintiff's motion to compel and direct defendant to serve responses to plaintiff's discovery requests.
In defendant's motion, defendant seeks modification of the court's May 24, 2007, scheduling order to allow for the taking of plaintiff's deposition. Defendant states that plaintiff's deposition was originally scheduled for September 12, 2007 — 2 days before the discovery cut-off date — but that, because plaintiff had been temporarily transferred off-site for medical reasons, the deposition could not go forward. Defendant seeks new discovery and dispositive motion cut-off dates. Good cause appearing therefor, defendant's motion will be granted.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion to compel (Doc. 22) is granted;
2. Defendant shall serve responses to the three discovery requests referenced herein within 30 days of the date of this order;
3. Defendant's motion for modification of the scheduling order (Doc. 28) is granted;
4. The parties may conduct discovery until October 31, 2007;
5. Any motions to compel shall be filed by this date;
6. The dispositive motion cut-off date is extended to December 31, 2007; and
7. The deadlines established in the May 24, 2007, scheduling order for the filing of pre-trial statements only are hereby vacated pending further order of the court.