United States District Court, D. Arizona
HONORABLE EILEEN S. WILLETT UNITED STATES MAGISTRATE JUDGE
before the Court is Defendants' Motion to Quash
Plaintiff's Notice for Written Deposition (Doc. 76) and
Plaintiff's responses filed as “Plaintiff's
Reply's to the Defendants' Motion to Quash
Plaintiff's Notice for Written Deposition (Docs.79, 87).
No. reply has been filed, and the time to do so has passed.
request that the Court quash Plaintiff's Notice for
Written Deposition upon Defendants (“Plaintiff's
Notice”) as untimely. Defendants correctly note that
discovery in this case closed on January 2, 2019 (Doc. 14 at
2). Plaintiff's Notice therefore may be denied as
untimely as it was filed after the January 2, 2019 discovery
deadline. (Doc. 14 at 2). See 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superseded by statute on other grounds as recognized in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). Plaintiff argues that extraordinary circumstances
exist supporting his late discovery requests. Plaintiff
posits that his incarceration and limited access to the
internet are extraordinary circumstances supporting written
deposition questions to Defendants.
Court has broad discretion in supervising the pretrial phase
of litigation. See Zivhovic v. Southern California Edison
Co., 302 F.3d 1080 (9th Cir. 2002). Under 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 end.” Id.
“Moreover, carelessness is not compatible with a
finding of diligence and offers no reason for a grant of
pretrial schedule cannot be met despite the diligence of the
party seeking an extension of time, the Court may modify its
scheduling order. See Miller & Kane, Federal
Practice and Procedure § 1522.1 at 231 (2d ed. 1990)
(good cause means scheduling deadlines cannot be met despite
party's diligence). “Although the existence or
degree of prejudice to the party opposing the modification
might supply additional reasons to deny a motion, the focus
of the inquiry is upon the moving party's reasons for
seeking modification. Moreover, where a motion is made to
extend a deadline after the deadline has expired, the movant
must show excusable neglect. See Fed. R. Civ. P.
pro se litigants are given leniency in evaluating compliance
with the technical Rules of Civil Procedure, the rules still
apply to pro se litigants. Draper v. Combs, 792 F.2d
915, 924 (9th Cir. 1986) (“We recognize that the
plaintiff represented himself and therefore, in evaluating
his compliance with the technical rules of civil procedure,
we treat him with great leniency.”); Ghazali v.
Moran, 46 F.3d 52, 54 (9th Cir. 1995) (“Although
we construe pleadings liberally in their favor, pro se
litigants are bound by the rules of procedure.”).
Court finds that Plaintiff has not shown the diligence
required for a finding of “good cause.”
Plaintiffs request for written depositions were made after
the discovery deadlines have passed. Plaintiff has not shown
excusable neglect justifying his delay and supporting a late
modification. See Pioneer Inv. Servs. v. Brunswick
Assocs. Ltd., 507 U.S. 380, 392 (1993) (stating that
“inadvertence, ignorance of the rules, or mistakes
construing the rules do not usually constitute
‘excusable' neglect”). In addition, because
Plaintiff has failed to show good cause to extend the
generous deadlines set forth in the Court's Scheduling
Order or excusable neglect for extending those deadlines he
already has missed, this ends the Court's inquiry into
whether an extension should be granted. See Coleman v.
Quaker Oats Co., 232 F.3d 1271, 1295 (9th
reasons set forth herein, IT IS ORDERED
granting Defendants' Motion to Quash Plaintiffs ...