United States District Court, D. Arizona
S. Willett, United States Magistrate Judge.
Order sets forth the Court's rulings on Plaintiff's
two pending Motions for Discovery Dispute Resolution (Docs.
Plaintiff's “Motion for Discovery Dispute
Resolution Regarding Plaintiff's Request for
Production” (Doc. 131)
“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).
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).
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.
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.
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
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
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 ...