United States District Court, D. Arizona
Michael V. Withers, Plaintiff,
Beecken Petty O'Keefe & Company, et al., Defendant.
Honorable John Z. Boyle, United States Magistrate Judge.
before the Court are four Motions: (1) Plaintiff's Motion
to Compel Disclosure of Evidence (doc. 24), (2)
Plaintiff's Second Motion to Compel Discovery (doc. 30),
(3) Plaintiff's Motion for Sanctions (doc. 32); and (4)
Plaintiff's Motion to Extend Dates for Discovery (doc.
36). The Court will deny each motion.
September 6, 2017, Plaintiff Michael V. Withers, who is
confined in the Arizona State Prison Complex-Florence, filed
a pro se civil rights Complaint pursuant to 42 U.S.C. §
1983 (doc. 1) in the United States District Court for the
Middle District of Tennessee, and paid the filing fee. On
September 28, 2017, that court found that venue was improper
in the Middle District of Tennessee and directed that the
matter be transferred to this Court. (Doc. 2.) This action
was subsequently opened. On January 16, 2018, the Court
dismissed Plaintiff's Complaint with leave to amend
because Plaintiff had failed to comply with Rule 3.4 of the
Local Rules of Civil Procedure. (Doc. 5.)
January 25, 2018, the Plaintiff filed a First Amended
Complaint. (Doc. 6.) After Screening, the Court ordered
Defendants Corizon and Grafton-Burns to answer Count One, but
dismissed the Complaint's remaining allegations (Counts
Two through Six) and Defendants without prejudice. (Doc. 7.)
On May 3, 2018, Plaintiff filed a second Motion to Amend.
(Doc. 8.) On June 4, 2018, this Court denied the motion,
finding that it substantially restated the same allegations
in the first amended complaint without correcting any of its
deficiencies. (Doc. 15 at 3.) On July 2, 2018, Plaintiff
filed his third Motion to Amend. (Doc. 18.) The Court has not
yet ruled on that motion.
10, 2018, this Court filed a Scheduling Order, which
instructed that the parties “shall not file motions
concerning a discovery dispute without first seeking to
resolve the matter through personal or telephonic
consultation and sincere effort as required by Rule 37(a) of
the Federal Rules of Civil Procedure and Rule 7.2(j) of the
Local Rules of Civil Procedure.” (Doc. 21 at 2.) On
August 14, 2018, Defendants filed a Notice of Service of
Discovery, wherein Defendants gave notice that they timely
served Plaintiff with relevant discovery responses. (Doc.
September 4, 2018, Plaintiff filed his first Motion to Compel
Disclosure of Evidence (“Plaintiff's First
Motion”). (Doc. 24). On September 18, 2018, Defendants
filed a Response to Plaintiff's Motion to Compel. (Doc.
26.) The Court has not yet ruled on Plaintiff's First
Motion. Plaintiff subsequently filed a second Motion to
Compel Discovery on November 9, 2018 (“Plaintiff's
Second Motion”). (Doc. 31.) That same day, Plaintiff
filed a Motion for Sanctions. (Doc. 32.) On October 26, 2018,
Plaintiff filed a “Motion to Extend Dates[, ]”
seeking a 90-day extension for the Court issued deadlines of
fact discovery, dispositive motions, and motions to amend.
(Doc. 36.) The Court will address each of Plaintiff's
Plaintiff's Motions to Compel.
has filed two Motions to Compel. (Docs. 24; 30.) District
courts have broad discretion to permit or deny discovery.
Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.
2002). A motion to compel discovery “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.” Fed.R.Civ.P. 37(a)(1); L.R. Civ. 7.2(j);
see also Lathan v. Ducart, No. 16-15633, 2017 WL
4457198, at *1 (9th Cir. Oct. 4, 2017) (“The district
court did not abuse its discretion by denying
[plaintiff's] motion to compel discovery because
[plaintiff] failed to meet and confer with
defendants.”) (citation omitted). In their Response,
Defendants argue that Plaintiff's First Motion does not
comply with Local Rule 7.2(j) because the parties did not
first seek “to resolve the matter through personal or
telephonic consultation and sincere effort” as required
by the rule. (Doc. 26 at 1.) This Court agrees.
record does not indicate, nor does the Plaintiff identify in
either of his motions, requests for a discovery conference or
any other efforts to meet and confer by either party. To be
sure, Plaintiff mentions in his subsequent Motion for
Sanctions that he “spoke to [Defendant's counsel]
for about 60 minutes.” (Doc. 32 at 1.) However,
Plaintiff fails to identify whether the conversation occurred
before his Motions to Compel, or whether his intent to file
Motions to Compel was discussed with Defendants at all during
the alleged conversation. The Court finds Plaintiff has
failed to satisfy the procedural requirements of Rule 7.2(j)
and this Court's Scheduling Order. Accordingly, the Court
will deny both Motions to Compel.
Plaintiff's Motion for Sanctions.
has also filed a Motion for Sanctions. (Doc. 32.) In his
motion, Plaintiff alleges that “in bad faith, to
harass, to prevent inmates from presenting their evidence, to
prevail by concealing evidence, counsel is thwarting
discovery efforts.” (Doc. 32 at 2.) Plaintiff argues
that, in addition to granting both Motions to Compel, the
Court should order Defendant to pay the Court for
“having to extend its judicial resources in resolving
this matter.” (Id.) Because Plaintiff has
failed to meet the procedural requirements for his Motions to
Compel, and because the Court accordingly denies both
motions, Plaintiff fails to identify any bad faith conduct on
behalf of Defendants such that sanctions are warranted.
Accordingly, the Court will deny Plaintiffs Motion for
Motion to Extend Dates.
has filed a “Motion to Extend Dates[, ]” seeking
a 90-day extension for the Court issued deadlines of fact
discovery, dispositive motions, and motions to amend. (Doc.
36.) Plaintiff fails to provide good cause as to why such an