United States District Court, D. Arizona
S. Willett United States Magistrate Judge.
Order addresses Plaintiff's pending “Motion to
Compel Discovery” (Doc. 175). For the reasons set forth
herein, the Motion (Doc. 175) will be denied.
Procedural History Relevant to the “Motion to Compel
Discovery” (Doc. 175)
April 20, 2015, the Court issued a Scheduling Order setting
December 16, 2015 as the deadline for completing all
discovery in this case. (Doc. 34 at 2). On December 14, 2015,
Plaintiff filed a “Motion to Compel Production of
Documents” (Doc. 76), in which Plaintiff requested an
order compelling Defendants to produce disciplinary history
for Defendants Burke, Basso, and Schiavo. On January 14,
2016, the Court granted the Motion (Doc. 76) as to Defendant
Burke. (Doc. 84 at 4). The Court denied the Motion (Doc. 76)
as to Defendants Basso and Schiavo because Defendant Basso
had not yet been served and Defendant Schiavo had not yet
been made a party. (Id.).
February 8, 2016, Plaintiff filed a second Motion to Compel
(Doc. 90), asserting that Defendant Burke failed to comply
with the Court's Order (Doc. 84). The Court granted
Plaintiff's Motion (Doc. 90) and ordered Defendant Burke
to produce certain specified documents relating to his
employment with the Arizona Department of Corrections. (Doc.
103 at 2-3). The Order set May 2, 2016 as the deadline for
producing the documents. (Id. at 3). The Order also
states: “For clarity of the record, the discovery
deadline of December 15, 2015 is extended to May 2, 2016 only
as to the records ordered to be produced herein.”
(Id.). Defendants Contreras and Burke moved the
Court to reconsider the Order, which the Court granted in
part and denied in part. (Docs. 111, 140). Defendants
Contreras and Burke then appealed the Order to the assigned
District Judge. (Doc. 143).
Basso appeared on May 20, 2016 (Doc. 121). Defendant Schiavo
appeared on July 8, 2016 (Doc. 138). Plaintiff does not
contravene Defendants' assertion that no discovery was
served on Defendants Basso and Schiavo after their
appearances. (Doc. 178 at 4).
January 2018, the case was reassigned to another District
Judge. (Doc. 164). On January 17, 2018, the newly assigned
District Judge affirmed the Court's Order (Doc. 103)
requiring Defendant Burke to produce certain employment
documents. (Doc. 169).
Court held a status conference on February 20, 2018. (Doc.
174). During the status conference, Plaintiff's counsel
indicated that there was an outstanding discovery issue. The
Court directed Plaintiff to file a motion delineating what
discovery dispute remains pending. On February 23, 2018,
Plaintiff filed the pending “Motion to Compel
Discovery, ” which states that “Plaintiff, via
counsel, reasserts his discovery motion at Doc. 76.”
(Doc. 175 at 1).
Analysis of the Pending “Motion to Compel
Discovery” (Doc. 175)
filing a motion to compel discovery, parties must confer, or
attempt to confer, in “good faith.” Fed.R.Civ.P.
37(a). Rule 37(a)(1) requires that a motion to compel
“must include a certification that the movant has in
good faith conferred or attempted to confer with the person
or party failing to make disclosure or discovery in an effort
to obtain it without court action.” Local Rule of Civil
Procedure (“LRCiv”) 7.2(j), as well as this
Court's Scheduling Order (Doc. 34 at 3), further requires
personal or telephonic consultation between the parties prior
to the filing of a motion to compel. Denial of
Plaintiff's “Motion to Compel Discovery”
(Doc. 175) is warranted for the reason that it does not
include the certification required by Federal Rule of Civil
Procedure 37 and LRCiv 7.2(j). Denial is also warranted on
the basis that the Motion is untimely, as explained below.
Rule 16(b) of the Federal Rules of Civil Procedure, a
district court is required to establish a schedule that sets
pretrial deadlines. A Rule 16 scheduling order may be
“modified only for good cause and with the judge's
consent.” Fed.R.Civ.P. 16(b)(4). This is because
“[a] scheduling order is not a frivolous piece of
paper, idly entered, which can be cavalierly disregarded by
counsel without peril.” Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992)
(citation and internal quotations marks omitted).
“Disregard of the order would undermine the court's
ability to control its docket, disrupt the agreed-upon course
of the litigation, and reward the indolent and the
cavalier.” Id. Rule 16(b)'s ‘good
cause' standard primarily considers the diligence of the
party seeking the amendment. Id. at 609. If the
movant “was not diligent, the inquiry should
addition, Ninth Circuit case law supports a district
court's denial of a motion filed after the applicable
scheduling order deadline on the ground that the movant did
not request to modify the deadline. Id. at 608
(“Johnson did not specifically request that
the court modify its scheduling order; he merely moved to
amend his complaint. He points out that some courts have
considered a motion to amend the complaint as a motion to
amend the scheduling order and the court's denial of that
motion a denial of a motion to amend the scheduling order. .
. . We have suggested the contrary.”); U.S.
Dominator, Inc. v. Factory Ship Robert E. Resoff, 768
F.2d 1099, 1104 (9th Cir. 1985) (holding that a district
court properly denied a motion as untimely where it was filed
after the applicable scheduling order deadline and the movant
“never requested a modification” of the
scheduling order), superseded by statute on other grounds
as recognized in Simpson v. Lear Astronics Corp., 77
F.3d 1170 (9th Cir. 1996); see also Dedge v.
Kendrick, 849 F.2d 1398, 1398 (11th Cir. 1988) (holding
that a district court properly denied a motion as untimely
where the motion was filed after the deadline set forth in
the scheduling order and the movant did not request a
modification of the scheduling order).
the Court set December 16, 2015 as the discovery deadline.
(Doc. 34 at 2). Plaintiff has not filed a motion requesting a
modification of this deadline. Accordingly, Plaintiff's
Motion to Compel (Doc. 175) may be denied as untimely.
See Johnson, 975 F.2d at 608; U.S. Dominator,
Inc., 768 F.2d at 1104. The Motion (Doc. 175) may be