United States District Court, D. Arizona
ORDER
EILEEN
S. WILETT UNITED STATES MAGISTRATE JUDGE.
This
Order sets forth the Court's rulings on a number of
pending Motions (Docs. 230, 272, 276, 292).
I.
DISCUSSION
A.
Plaintiff's “Motion to Compel Discovery Pursuant to
Fed.R.Civ.P. 37” (Doc. 230)
In his
October 29, 2018 Motion (Doc. 230), Plaintiff seeks an order
compelling certain non-parties to comply with subpoenas duces
tecum. Non-party Federal Bureau of Investigation has filed a
brief (Doc. 242) opposing the Motion (Doc. 230). For the
reasons explained below, the Motion will be denied.
District
courts have broad discretion to control discovery. Little
v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988).
The Court observes that Plaintiff filed his Motion to Compel
(Doc. 230) on the last day of discovery. (Doc. 76).
“The requesting party cannot delay a motion to compel
with impunity.” Gault v. Nabisco Co., 184
F.R.D. 620, 622 (D. Nev. 1999). “A motion to compel
filed on the last day of discovery [ ] may be untimely if it
could and should have been filed much earlier.” RKF
Retail Holdings, LLC v. Tropicana Las Vegas, Inc., No.
214CV01232APGGWF, 2017 WL 2908869, at *5 (D. Nev. July 6,
2017). Courts “have looked to the non-exhaustive list
of factors set forth in Days Inn Worldwide, Inc. v. Sonia
Investments, 237 F.R.D. 395, 398 (S.D. Tex. 2006), in
analyzing the timeliness of a motion to compel.”
Id. Factors that courts have considered in
determining the timeliness of a motion to compel include:
(1) the length of time since the expiration of the deadline,
(2) the length of time that the moving party has known about
the discovery, (3) whether the discovery deadline has been
extended, (4) the explanation for the tardiness or delay, (5)
whether dispositive motions have been scheduled or filed, (7)
the age of the case, (8) any prejudice to the party from whom
late discovery was sought, and (9) disruption of the
court's schedule.
Days Inn Worldwide, Inc., 237 F.R.D. at 398.
Here,
the Court's December 29, 2017 Scheduling Order (Doc. 31)
set May 29, 2018 as the deadline for completing discovery.
That deadline was later extended to October 29, 2018. (Doc.
76). The Court directed the issuance and service of the
subpoenas duces tecum to facilitate Plaintiff's discovery
of the identities of the anonymous Defendants. (Doc. 84). The
subpoenas duces tecum at issue in Plaintiff's Motion to
Compel were served in June 2018. (Docs. 121, 122, 243-1 at
7). The deadline for Plaintiff to file notices of
substitution regarding the anonymous Defendants expired on
August 29, 2018. (Doc. 126). The Court finds that Plaintiff
unduly delayed filing his October 29, 2018 Motion to Compel
(Doc. 230). The balance of the factors set forth in Days
Inn Worldwide, Inc., 237 F.R.D. at 398, weigh in favor
of denying the Motion (Doc. 230) on the basis that it is
untimely. Gault v. Nabisco Biscuit Co., 184 F.R.D.
620, 622 (D. Nev. 1999) (“If the moving party has
unduly delayed, the court may conclude that the motion [to
compel] is untimely.”) (quoting 8A Wright, Miller &
Marcus, Federal Practice and Procedure: Civil 2d § 2285
(1994 & Supp. 1998)); Everett v. Aldi, Inc., No.
1:07-CV-275, 2009 WL 940379, at *2 (N.D. Ind. Apr. 6, 2009)
(internal citations omitted) (Noting that “several
district courts have articulated that ‘[w]here a party
has waited to bring a motion to compel until the eve of a
discovery deadline, the court is justified in denying the
motion'”); Grey v. Dallas Indep. Sch.
Dist., 265 Fed.Appx. 342, 348 (5th Cir. 2008)
(“Even if we accept Grey's contention that
additional discovery would have enabled him to prove his
Title VII race discrimination claim, we are not required to
find that the district court abused its discretion by denying
his motion to compel discovery, because it was filed on the
day of the discovery deadline after an extensive discovery
period.”).
Moreover,
the Court does not find that the information that is the
subject of the Motion to Compel (Doc. 230) is proportional to
the needs of the case. Fed.R.Civ.P. 26(b)(1) (“In
determining proportionality, the court “consider[s] the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit.”); see also Calderon v. U.S. Dist. Court
for the N. Dist. of Cal., 98 F.3d 1102, 1106 (9th Cir.
1996) (discovery is not to be used for a fishing expedition
to investigate mere speculation). Plaintiff's Motion
(Doc. 230) will be denied.
B.
Plaintiff's “Motion for Court Order to Serve
Subpoena Duces Tecum Re: Plaintiff's Delayed Motion for
Extension of Time to File Plaintiff's Written
Certification . . .” (Doc. 272)
In an
August 29, 2018 Order (Doc. 185 at 3), the Court set
September 19, 2018 as the deadline for Plaintiff to file a
written certification stating whether expert testimony is
necessary to prove the healthcare professional standard of
care for his medical malpractice claim in Count III of the
Third Amended Complaint. It subsequently came to the
Court's attention that Plaintiff may not have timely
received that Order. In a September 26, 2018 Order (Doc.
208), the Court extended the deadline for Plaintiff to file
the required written certification to October 5, 2018.
Plaintiff
did not file his written certification by the October 5, 2018
deadline. On November 20, 2018, the Corizon Defendants filed
a “Motion to Dismiss Plaintiff's Medical
Malpractice Claim (Count III) Pursuant to Ariz. Rev. Stat.
§ 12-2603(F)” (Doc. 252). On November 28, 2018,
Plaintiff filed a document captioned as
“(‘Gamez') provides this Court Written
Cerification [sic] that Expert Testimony is NOT
Required to prove (‘Corizon Defendants') deviated
from the Professional Standard of Care Pursuant to Ariz. Rev.
Stat. § 12-2603” (Doc. 266). Plaintiff states in
his filing that expert testimony is not required with respect
to Plaintiff's claim in Count III of the Third Amended
Complaint.
On
December 3, 2018, Plaintiff filed a motion captioned as
“Plaintiff's Motion for Court Order to Serve
Subpoena Duces Tecum Re: Plaintiff's Delayed Motion for
Extension of Time to File Plaintiff's Written
Certification of Time to File Plaintiff's Written
Certification Whether Expert Testimony is Required Pursuant
to ARS Section 12-7603(B), Due to Plaintiff's Excusable
Neglect” (Doc. 272). Plaintiff states that he
“actually received the Court's September 25, 2018
Order (Doc. 208) on October 16, 2018, via the ADOC CM/ECF
electronic mail system as officially documented and recorded
by ADOC staff per his ‘signed and dated receipt of
October 16, 2018.'” (Doc. 272 at 3). Plaintiff
seeks the issuance of a subpoena duces tecum to obtain a copy
of his signed and dated receipt of the Court's September
25, 2018 Order (Doc. 208). No. response has been filed and
the time to do so has passed. See LRCiv 7.2(i). The
Court will grant Plaintiff's Motion (Doc. 272) to the
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