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Corzo v. Maricopa County Community College District

United States District Court, D. Arizona

April 9, 2018

Miguel Corzo, Plaintiff,
v.
Maricopa County Community College District, et al., Defendants.

          ORDER

          Eileen S. Willett, United States Magistrate Judge.

         This Order sets forth the Court's rulings on Plaintiff's two pending Motions for Discovery Dispute Resolution (Docs. 131, 134).

         I. DISCUSSION

         A. Plaintiff's “Motion for Discovery Dispute Resolution Regarding Plaintiff's Request for Production” (Doc. 131)

         Plaintiff's “Motion for Discovery Dispute Resolution Regarding Plaintiff's Request for Production” (Doc. 131) concerns Defendants' alleged failure to fully comply with Plaintiff's thirty-nine Requests for Production that Plaintiff served on Defendants in May 2017. Pursuant to extensions of time, Defendants provided their responses to the Requests for Production on September 5, 2017. (Id. at 2). On October 2, 2017, Plaintiff's counsel emailed defense counsel concerning discovery and other matters. (Doc. 86-1 at 35-36). The email states: “[T]here are multiple deficiencies in Defendants' recent discovery responses. In light of our focus on mediation, we will postpone sending you a letter identifying these deficiencies and offered compromises until after mediation, if necessary.” (Id. at 35). Plaintiff does not dispute that he waited until December 21, 2017 to formally propose via letter to defense counsel a resolution of the discovery issue. (Doc. 86-1 at 59-66).

         Discovery in this matter closed on December 28, 2017. (Doc. 38). In an email sent on December 28, 2017 at 10:59 a.m. to defense counsel, Plaintiff's counsel stated that “As today is the last day of discovery, if we are unable to reach a compromise, I plan to file with the court a brief discovery dispute notice consistent with the court's order.We are each limited to a page-and-half. I will send our draft early this afternoon.” (Doc. 86-1 at 73). In an email sent at 11:25 a.m., defense counsel replied:

Pavneet is out of the office today and I have urgent several projects for other clients that I must attend to and complete today. . . .
We simply do not have the bandwidth to agree to get a joint discovery motion on file with the court today (since you literally waited until the last minute) but we will accommodate you by scheduling a phone call.

(Id. at 72).

         On December 28, 2017 at 9:35 p.m., Plaintiff unilaterally filed his “Motion for Discovery Dispute Resolution” (Doc. 86). Defendants responded on December 29, 2017, asserting that the Motion (Doc. 86) is untimely. (Doc. 89). Plaintiff replied on January 5, 2018. (Doc. 92). On January 31, 2018, the Court held oral argument on a number of pending motions. (Doc. 114). It denied Plaintiff's Motion (Doc. 86) without prejudice and granted leave to re-file it. (Id.).

         On February 15, 2018, Plaintiff re-filed the Motion for Discovery Dispute Resolution (Doc. 131). In their Response (Doc. 139 at 3-4), Defendants reassert their argument that Plaintiff's Motion should be denied as untimely. In his Reply (Doc. 143 at 2), Plaintiff contends that the Motion is timely because it was filed on the last day of discovery.

         The Scheduling Order provides that if the parties are unable to resolve any discovery dispute through personal consultation and sincere effort as required by LRCiv 7.2(j), then the parties “may jointly request Court assistance by filing a Joint Motion for Discovery Dispute Resolution” that does not exceed three pages and sets forth a joint statement of the discovery dispute. (Doc. 29 at 3-4) (emphasis in original). Plaintiff does not dispute that he waited until December 28, 2017 to contact defense counsel regarding the preparation of a joint motion for discovery conference. The Court finds that Plaintiff failed to act diligently so as to facilitate compliance with the Scheduling Order's requirement that a joint motion be brought concerning discovery disputes.

         In addition, the Scheduling Order provides that “[a]bsent extraordinary circumstances, the Court will not entertain fact discovery disputes after the deadline for completion of fact discovery[.]” (Id. at 4) (emphasis in original). As Plaintiff did not file his unilateral Motion for Discovery Dispute Resolution (Doc. 86) until 9:35 p.m. on the last day of discovery, the Court was precluded from entertaining the discovery dispute until after the December 28, 2017 deadline expired. Indeed, the matter was not fully briefed until January 5, 2018. (Doc. 92). The record indicates that Plaintiff was aware of the discovery issue in October 2017. (Doc. 86-1 at 35-36). Further, the Court notes that Plaintiff did not mention any other outstanding discovery issues in his December 8, 2017 “Motion to Extend Deadline for Non-Expert Depositions” (Doc. 81) aside from the completion of non-expert depositions.[1]

         The Court finds that Plaintiff failed to act with reasonable diligence with respect to filing his Motion for Discovery Dispute Resolution (Doc. 131). See Gerawan Farming, Inc. v. Rehrig Pacific Company, No. 1: 11-cv-01273-LJO-BAM, 2013 WL 492103, at *6 (E.D. Cal. Feb. 8, 2013) (denying as untimely motions to compel discovery that became fully briefed on the last day of discovery, explaining that “[b]y noticing the hearings on their respective Motions to Compel for the last day of discovery, the Court is without the means to provide any effective relief prior to the discovery cutoff.[] The Court would be ordering discovery be conducted after the discovery cutoff date.”). As Plaintiff has not shown the existence of ...


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