Olivas et al v. United States of America et al, No. 3:2011cv02606 - Document 43 (S.D. Cal. 2013)
Court Description: ORDER Denying Plaintiffs' Motion To Modify The Scheduling Order (Re Doc. 35 ). Signed by Magistrate Judge William McCurine, Jr on 3/25/2013. (mdc)
Download PDF
<![CDATA[
Olivas et al v. United States of America et al Doc. 43 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ) ) ) ) Plaintiffs, ) ) v. ) UNITED STATES OF AMERICA and ) ) DOES 1-20, ) ) Defendants, ) ELOY OLIVAS and ELVIRA OLIVAS, Case No. 11cv2606-WQH (WMc) ORDER DENYING PLAINTIFFS’ MOTION TO MODIFY THE SCHEDULING ORDER 17 18 19 20 21 22 23 24 25 26 27 28 Introduction This case involves the alleged assault of Plaintiff Eloy Olivas by Defendant Jones, a United States Customs and Border Protection officer, at the Calexico-East Port of Entry. On January 22, 2013, the Court held a telephonic conference to address a discovery dispute regarding Defendant Jones’ obligation to respond to Plaintiffs’ written discovery requests. After hearing from counsel, the Court ordered the parties to brief whether or not discovery can be served on a party that has yet to appear in an action by way of answer and whether or not the filing of a motion to dismiss constitutes an appearance by the filing party. Arguments Plaintiffs contend the Court should extend the discovery cut-off date and 11cv2606-WQH (WMc) Dockets.Justia.com 1 permit Defendant Jones to respond to the written discovery. Plaintiffs deposed 2 Defendant Jones on September 27, 2012, but contend new information has arisen that 3 requires Plaintiffs to seek follow-up information through written discovery. 4 Defendants contend Plaintiffs’ written discovery requests for Defendant Jones are 5 untimely, Plaintiffs had adequate time to comply with the Court’s Scheduling Order, 6 and Plaintiffs should have raised this issue before the discovery cutoff. Both parties 7 claim potential prejudice: Plaintiffs claim they will be prejudiced if Defendant Jones 8 does not respond to their discovery requests whereas Defendants claim they will be 9 prejudiced if the Court reopens discovery. Although both parties agree Plaintiffs are 10 “stuck between a rock and a hard place,” they disagree over who is responsible for 11 Plaintiffs’ predicament. 12 Applicable Law 13 Federal Rule of Civil Procedure 16 sets forth the framework for the Court and 14 parties to manage the pretrial and discovery phase of a civil case in preparation for 15 trial. The Court may modify the scheduling order for good cause. Fed. R. Civ. P. 16 16(b)(4). To find good cause, the Court must consider the diligence of the party 17 seeking the extension. See Johnson v. Mammoth Recreations, Inc. 975 F.2d 604, 609 18 (9th Cir. 1992) (citing Fed. R. Civ. P. 16 Advisory Committee Notes (1983 19 amendment)). To find diligence, Courts consider the modification-seeking party’s 20 diligence in complying with the scheduling order, including the party’s participation 21 in creating the scheduling order and the party’s diligence in remedying non- 22 compliance or potential non-compliance with the scheduling order. See Masterpiece 23 Leaded Windows Corp. v. Joslin, No. 08-CV-0765, 2009 WL 1456418, *2 (S.D. Cal. 24 May 22, 2009). Also, courts consider the cause of the party’s inability to comply with 25 the scheduling order. See Id. If the court determines the moving party was not 26 diligent, the inquiry ends. Johnson, 975 F.2d at 604. 27 Although the focus of the Court’s inquiry is on the modification-seeking party’s 28 diligence, the Court may also consider the prejudice to the party opposing 2 11cv2606-WQH (WMc) 1 modification. Id. Conversely, “[a] party who fails to pursue discovery in the face of 2 a court ordered cut-off cannot plead prejudice from his own inaction.” Rosario v. 3 Livaditis, 963 F.2d 1013 (7th Cir. 1992). 4 Analysis1 5 The Court’s analysis starts with the typical civil action. The plaintiff files a 6 complaint. The defendant files an answer. The Court sets an Early Neutral Evaluation 7 Conference (“ENE”). If the parties do not reach settlement at the ENE, the Court sets 8 a Case Management Conference (“CMC”) and instructs the parties on Rule 26 9 compliance. Following the CMC, the Court issues a Scheduling Order regulating the 10 pretrial and discovery schedule. Generally, a party may not serve discovery before the 11 CMC. The parties engage in discovery until the discovery cutoff set forth in the 12 Scheduling Order. The case is either settled or resolved by trial or dispositive motion 13 practice. 14 The instant case deviated from the norm when Plaintiffs filed a First Amended 15 Complaint (“FAC”) to include Defendant Jones after Plaintiffs and Defendant (United 16 States of America) completed the ENE, Rule 26 compliance, the CMC, and the Court 17 issued the Scheduling Order. The instant case further deviated from the typical case 18 when all Defendants, including Defendant Jones, moved to dismiss the FAC. 19 Essentially, Plaintiffs lost three to four months of the discovery phase in regard to 20 Defedant Jones because discovery began on June 11, 2012 (following the CMC) but 21 Plaintiffs did not file the FAC adding Defendant Jones until September 20, 2012, and 22 did not serve Defendant Jones with the summons and complaint until October 5, 2012. 23 For the following reasons, the Court finds Plaintiffs did not seek written 24 discovery from Defendant Jones with reasonable diligence. First, Plaintiffs should 25 have been more diligent with regard to Defendant Jones in general because Defendant 26 Jones is the principal actor in Plaintiffs’ grievance. Although not specifically named 27 in the original complaint, his actions were described in detail and those actions 28 1 A chronology of relevant events is attached as an appendix to this Order. 3 11cv2606-WQH (WMc) 1 constitute the gravamen of Plaintiffs’ lawsuit. In the original complaint, Plaintiffs 2 allege Defendant Jones pulled Mr. Olivas from his truck and assaulted him. Second, 3 Defendant provided Plaintiffs with Defendant Jones’ actual identity through 4 Defendants’ initial disclosures on June 1, 2012. However, Plaintiffs did not seek leave 5 to amend the complaint to add Defendant Jones until July 27, 2012. Third, Plaintiffs 6 did not move to amend the scheduling order until just before discovery closed. The 7 Court’s rules require the parties to meet and confer and contact Judge McCurine’s 8 chambers before filing a discovery motion. Plaintiffs contacted the Court on January 9 3, 2013 by e-mail to request a January 9, 2012 hearing date. Fourth, as discussed 10 below, Plaintiffs’ counsel waited to serve written discovery until after Defendant 11 Jones joined in Defendants’ motion to dismiss and after Defendant Jones was 12 deposed. By contrast, Plaintiffs could have propounded written discovery on 13 Defendant Jones as soon as Defendant Jones joined the action; Defendant Jones 14 became a party to the action when Judge Hayes granted Plaintiffs leave to file an 15 amended complaint and Defendant Jones joined the action when he was served with 16 the summons and complaint. See Nelson v. Adams USA, Inc., 529 U.S. 460, 465-67 17 (2000). 18 During the January 22, 2013 telephonic conference, the Court identified the 19 importance of the fourth item listed above and asked the parties to address two related 20 questions by letter-brief: May a party serve discovery on a party who has not yet 21 appeared? Does filing a motion to dismiss constitute an appearance? Plaintiffs 22 answered “no” to the first question and “yes” to the second question. Defendants did 23 not fully address the questions. Plaintiffs contend the Federal Rules of Civil Procedure 24 precluded them from serving interrogatories, requests for admission, and requests for 25 production of documents on Defendant Jones before Defendant Jones made an 26 appearance. Citing Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986), Plaintiffs 27 appear to contend a court must have jurisdiction over a party before discovery may 28 commence against that party. In Benny, the Ninth Circuit considered the breadth of 4 11cv2606-WQH (WMc) 1 Federal Rule of Civil Procedure 4 in regards to a default judgment entered against the 2 defendants for their failure to timely answer the plaintiff’s complaint. See Id. 3 However, Plaintiffs’ reliance on Benny is misplaced because Benny did not 4 contemplate whether a party may serve discovery on a party who has not yet appeared. 5 Moreover, Plaintiffs’ general proposition that the Federal Rules precluded them 6 from seeking written discovery from Defendant Jones before Defendant Jones 7 appeared fails for several reasons. First, the federal rules do not expressly forbid such 8 an action but rather preclude parties from serving discovery before complying with 9 Rule 26. Second, the parties complied with Rule 26 and the Court issued a Scheduling 10 Order which opened discovery. Third, the Federal Rules do not support Plaintiffs’ 11 contention that a party joined after discovery has begun is not yet a “party” within the 12 meaning of Rules 33, 34, and 36. See Fed. R. Civ. P. 26 (D) (“A party that is first 13 served or otherwise joined after the Rule 26(f) conference must make the initial 14 disclosures within 30 days after being served or joined, unless a different time is set 15 by stipulation or court order[]”)(emphasis added). Fourth, If Plaintiffs actually 16 thought Defendant Jones was not a “party” within the meaning of Rules 33, 34, and 17 36, Plaintiffs could have either (a) subpoenaed the same information under Rule 45, 18 or (b) moved the Court to extend the January 2, 2013 discovery cut-off in anticipation 19 of (1) the need to initiate additional discovery within a sufficient period of time in 20 advance of the cut-off date (early December, 2012) and (2) Defendants’ prerogative 21 to file a responsive pleading at any time within 60 days of the October 5, 2012 service 22 of the summons and complaint. Even assuming Plaintiff could not propound written 23 discovery on Defendant Jones until Defendant Jones filed a responsive pleading, 24 Plaintiffs could have moved for court-ordered expedited discovery immediately 25 following service of the summons and complaint.2 26 27 2 Where a party seeks formal discovery prior to the Rule 26(f) conference, the court applies a “good cause” standard. Semitool, Inc. v. Tokyo Electron America, 208 F.R.D. 28 273 (N.D. Cal. 2002). “Good cause may be found where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the 5 11cv2606-WQH (WMc) 1 Although Plaintiffs proposed a reasonable, expedited discovery schedule for the 2 proposed discovery, Plaintiffs failed to diligently seek leave to amend the complaint 3 to add Defendant Jones, failed to diligently serve Defendant Jones once the Court 4 granted leave, and failed to diligently seek written discovery or move to extend the 5 discovery cut-off. 6 Moreover, the Court has reviewed Defendant Jones’ deposition transcript and 7 the written discovery served on Defendant Jones and finds Plaintiffs’ claim of 8 prejudice is not well taken. Indeed, Plaintiffs deposed Defendant Jones for two hours 9 on the topics included in the written discovery. The Court finds Plaintiffs have failed 10 to demonstrate good cause to modify the Scheduling Order. Plaintiffs were not 11 diligent and, therefore, the Court’s inquiry ends. See Johnson, 975 F.2d at 604. 12 13 IT IS SO ORDERED. DATED: March 25, 2013 14 15 Hon. William McCurine, Jr. U.S. Magistrate Judge, U.S. District Court 16 17 18 19 20 21 22 23 24 25 26 27 28 responding party.” Id. at 276. 6 11cv2606-WQH (WMc) 1 2 Appendix 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Chronology: November 8, 2011 May 2, 2012 May 18, 2012 June 1, 2012 June 15, 2012 June 19, 2012 July 27, 2012 August 31, 2012 September 10, 2012 September 20, 2012 October 5, 2012 December 4, 2012 December 14, 2012 December 20, 2012 January 2, 2013 Plaintiff filed initial complaint Court conducted Early Neutral Evaluation Conference Deadline to complete Rule 26(f) exchange Plaintiff learned of Defendant Jones’ identity Court conducted Case Management Conference Court issued Scheduling Order Plaintiffs filed motion for leave to amend complaint to add Defendant Jones Deadline to amend the pleadings to add new parties Court granted motion to add Defendant Jones Plaintiffs filed First Amended Complaint Plaintiffs served Defendant Jones a summons and complaint by mail Defendant Jones and Defendant United States of America moved to dismiss the first amended complaint Plaintiffs served written discovery on Defendant Jones Counsel met and conferred regarding Defendant Jones anticipated response to the discovery requests Discovery cutoff 25 26 27 28 7 11cv2606-WQH (WMc)
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
