Ditko v. Fabiano Communications Incorporated

• Court: District Court, D. Arizona
• Decided: April 9, 2020
• Docket: 2:19-cv-04442
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Stephen Ditko, No. CV-19-04442-PHX-MTL

10 Plaintiff, ORDER

11 v.

12 Fabiano Communications Incorporated,

13 Defendant. 14 15 Before the Court is Plaintiff’s Motion to Extend Deadline for Discovery. (Doc. 28.) 16 The discovery deadline in this case was February 14, 2020. (Doc. 17.) Plaintiff Stephen 17 Ditko, pro se, moves for a 60-day extension. Defendant Fabiano Communications, Inc. 18 objects to the motion. (Doc. 29.) For the reasons stated herein, the motion is granted. 19 Plaintiff served discovery requests on Defendant on January 24, 2020. (Doc. 24; 20 Doc. 28 at 1.) Defendant did not respond to the discovery requests because its deadline to 21 do so was February 26, 2020. See Fed. R. Civ. P. 34(b)(2)(A). (Doc. 29 at 2.) Plaintiff also 22 requested availability for depositions for the first time on the February 14 deadline. (Id. at 23 2.) Plaintiff attributes his untimeliness to a pro se “learning curve,” his recent relocation to 24 Phoenix from California, and his efforts to take on “small, low wage” work projects, all of 25 which have been “overwhelming both physically and mentally.” (Id. at 2-3.) 26 The motion also states that Plaintiff “filed a Motion to Extend Time for Discovery 27 and Compel Discovery on February 14, 2020.” (Id. at 2.) The record does not reflect that 28 Plaintiff has previously filed such a motion. Rather, as indicated in Defendant’s response, 1 Plaintiff emailed a copy to Defendant but never filed it with the Court. (Doc. 29 at 2.) 2 Plaintiff then filed the pending motion on March 25, 2020. (Doc. 28.) Defendant filed a 3 response on March 26, 2020. (Doc. 29.) Defendant also filed a Motion for Summary 4 Judgment on the same day. (Docs. 30, 31.) 5 Plaintiff initiated this lawsuit and has a duty to prosecute the case. See Fidelity 6 Philadelphia Trust Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). 7 Rule 41(b) of the Federal Rules of Civil Procedure states that “[i]f the plaintiff fails to 8 prosecute or to comply with these rules or a court order, a defendant may move to dismiss 9 the action or any claim against it.” Further, pro se litigants including Plaintiff must comply 10 with the Federal Rules of Civil Procedure and all Court orders. See Jacobsen v. Filler, 790 11 F.2d 1362, 1364–65 (9th Cir. 1986). The Court expects Plaintiff to familiarize himself with 12 the Federal Rules of Civil Procedure, Local Rules of Civil Procedure for the District of 13 Arizona, the Federal Rules of Evidence, and any other applicable rules. Nonetheless, in the 14 interests of justice and to ensure that Plaintiff has an opportunity to prosecute the case, the 15 Court will permit the extension. 16 In so ruling, the Court notes that Defendant contributed to the delay. After Plaintiff 17 served discovery requests on January 24, Defendant’s counsel informed Plaintiff on the 18 discovery deadline, February 14, that “your discovery requests were untimely when they 19 were served on me on January 24, 2020. The response date for that discovery is February 20 24, 2020, which is after the close of discovery. Therefore, we will not be responding to 21 those requests.” (Doc. 29-2.) Defendant’s counsel was also aware that on February 16, 22 “Plaintiff emailed undersigned counsel a Motion to Extend Discovery that was never filed 23 with the Court.” (Doc. 29 at 2.) While the Court acknowledges counsel’s duty to vigorously 24 defend her client, it also notes that a dose of professionalism would have minimized the 25 delay to the case schedule. 26 The Court also acknowledges that “Defendant has spent a significant amount in 27 legal fees over the last two months” in preparing its Motion for Summary Judgment. (Doc. 28 29.) Following the close of discovery, as modified by this Order, Defendant may either rely 1 || on the pending motion or to withdraw it and file a new one. 2 Accordingly, 3 IT IS ORDERED granting Plaintiff's Motion to Extend Deadline to Extend 4|| Deadline for Discovery (Doc. 28). The deadline to complete fact discovery, including final || supplementation of MIDP responses, is extended to April 30, 2020." 6 IT IS FURTHER ORDERED that the dispositive motion deadline is extended to 7\| June 12, 2020. 8 There will be no further extensions of these deadlines for any reason. 9 Dated this 9th day of April, 2020. 10

Michael T. Liburdi 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 * The Court is granting a longer-than-requested extension because Plaintiff's motion would 28 | extend the deadline to April 14, 2020. The Court does not believe that compliance would be practicable by this date.

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