1 2 3 4 5 6 7 8 9 10 13 14 ROBERT A. ENRIQUEZ, Case No.: 23-cv-903-WQH-SBC
Plaintiff, v. 16 17 COUNTY OF SAN DIEGO, a municipal entity; DOE DEPUTY 18 #1, sued herein in his individual 19 capacity; DOE DEPUTY #2, sued herein in his individual capacity; 20 DOE DEPUTY #3, sued herein in 21 his individual capacity; and DOE DEPUTY #4, sued herein in his 22 individual capacity, 23 Defendants. 24 HAYES, Judge: 25 The matter before the Court is the Response to Order to Show Cause and Request for 26 Case Management Conference (“Response”) filed by Plaintiff Robert A. Enriquez 27 (“Plaintiff”). (ECF No. 13.) 28 2 On May 17, 2023, Plaintiff initiated this action by filing the Complaint against 3 Defendants County of San Diego (the “County”) and Doe Deputies #1, #2, #3, and #4 4 (collectively, the “Doe Defendants”). (ECF No. 1.) 5 On June 26, 2023, the County filed a Motion to Dismiss Complaint. (ECF No. 4.) 6 On March 26, 2024, the Court issued an Order granting in part and denying in part 7 the Motion to Dismiss. (ECF No. 10.) Specifically, the Order dismissed the claims against 8 the County without prejudice but denied the motion to dismiss the claims against the Doe 9 Defendants. Id. at 8–9. 10 On October 8, 2024, the Court issued an Order to Show Cause for failure to prosecute 11 because “[t]he docket reflect[ed] that no party ha[d] taken any action since the entry of the 12 Order granting in part and denying in part the Motion to Dismiss.” (ECF No. 12 at 2.) 13 On October 17, 2024, Plaintiff filed the Response, in the form of a declaration 14 submitted by Plaintiff’s counsel, George M. Lee (“Plaintiff’s Counsel”). (ECF No. 13.) 15 Plaintiff’s Counsel states that, “shortly” after the Court granted in part and denied in part 16 the Motion to Dismiss, Plaintiff’s Counsel “met and conferred with defendants’ counsel in 17 an attempt to evaluate the claims for possible early disposition and/or settlement.” Id. at 2. 18 Plaintiff’s Counsel states that Andrei Dumitrescu, counsel for the County (“County 19 Counsel”) “advised … that his office was in possession of a videotape that depicted the 20 incident giving rise to Plaintiff’s claims” and “indicated that he would be agreeable to 21 producing the videotape, subject to a stipulated protective order.” Id. Plaintiff’s Counsel 22 explains that he “expected to propose and raise the stipulated protective order at an 23 anticipated case management conference,” but no conference was scheduled. Id.1 24 25 1 The Court notes that, pursuant to this district’s Local Rules, an early neutral evaluation conference and 26 case management conference generally are not scheduled until after the filing of an answer. See S.D. Cal. Civ. L.R. 16.1(c)(1) (“Within forty-five (45) days of the filing of an answer, counsel and the parties must 27 appear before the assigned judge for an early neutral evaluation conference[.]” (emphasis added)); S.D. Cal. Civ. L.R. 16.1(c)(2)(b) (“If no settlement is reached at the ENE conference” and “no arbitration or 28 1 Plaintiff’s Counsel states that, after the Court issued the Order to Show Cause, 2 Plaintiff’s Counsel communicated with County Counsel, who took the position that “since 3 Plaintiff had not amended the complaint, the County was no longer a party to this action, 4 and that [the County] would not be willing to enter into any stipulated protective order, nor 5 would [the County] be willing to produce the videotape as previously offered.” Id. at 3. 6 Plaintiff’s Counsel states that County Counsel indicated that “the only avenue” for Plaintiff 7 to obtain information from the County related to identifying the Doe Defendants would be 8 through “subpoenas directed to the County for the information (incident reports and the 9 video tape) that was requested.” Id. at 4. 10 Plaintiff’s Counsel cites Wakefield v. Thompson for the proposition that “where the 11 identity of the alleged defendant [is not] known prior to the filing of a complaint[,] the 12 plaintiff should be given an opportunity through discovery to identify the unknown 13 defendants, unless it is clear that discovery would not uncover the identities, or that the 14 complaint would be dismissed on other grounds.” Id. (quoting 177 F.3d 1160, 1163 (9th 15 Cir. 1999)). Plaintiff’s Counsel asserts that “[t]hese matters should be discussed at a Case 16 Management Conference, at which time the parties can articulate their respective positions 17 as to whether the County has an obligation to participate in initial disclosures pursuant to 18 Rule 26(a), or otherwise to identify the identities of the Doe Officers.” Id. at 5. Plaintiff’s 19 Counsel requests that the Court “discharge the Order to Show Cause” and “order the parties 20 and their counsel—including County Counsel—to appear for a Case Management 21 Conference.” Id. 22 / / / 23 / / / 24 25 the ENE conference. The case management conference may be held at the conclusion of the ENE 26 conference.”); see also S.D. Cal. Civ. L.R. 16.1(a)(1) (explaining that, in this district, “[t]he timing of the Federal Rule 16(b) scheduling order is adjusted to accommodate the Early Neutral Evaluation Conference, 27 as allowed under Fed. R. Civ. P. 1”). As Plaintiff’s claims against the County were dismissed (ECF No. 10) and Plaintiff has not yet identified or served the Doe Defendants, no answer has been filed in this case 28 2 Plaintiff’s Counsel is correct that “where the identity of alleged defendants will not 3 be known prior to the filing of a complaint … the plaintiff should be given an opportunity 4 through discovery to identify the unknown defendants, unless it is clear that discovery 5 would not uncover the identities, or that the complaint would be dismissed on other 6 grounds.” Soo Park v. Thompson, 851 F.3d 910, 928 n.21 (9th Cir. 2017) (quoting Gillespie 7 v. Civiletti, 629 F.2d 637, 642–43 (9th Cir. 1980)). The Response indicates that Plaintiff 8 has not yet conducted discovery to identify the Doe Defendants. 9 Accordingly, Plaintiff shall expeditiously identify the Doe Defendants and move to 10 amend the Complaint to properly name those Defendants and adequately allege the 11 personal participation of each named Defendant in the alleged constitutional violations. 12 Although County Counsel has not entered a formal appearance on behalf of any Doe 13 Defendant, the County’s Motion to Dismiss requested dismissal and made legal arguments 14 on behalf of the Doe Defendants. (ECF No. 4-1 at 9–14.) The Court orders the County, and 15 its counsel, to cooperate with all appropriate discovery requests from Plaintiff aimed at 16 identifying the Doe Defendants who are alleged to have been employed by the County. 17 Plaintiff is cautioned that if, after an opportunity to conduct discovery, Plaintiff fails to 18 identify the Doe Defendants and adequately allege the personal participation of each named 19 Defendant in the alleged legal violations, the Complaint will be dismissed in its entirety. 21 IT IS HEREBY ORDERED that the Order to Show Cause (ECF No. 12) is 22 discharged. The case remains open. 23 IT IS FURTHER ORDERED that, no later than sixty (60) days after the date this 24 Order is entered, Plaintiff shall either (a) file a motion for leave to amend the Complaint, 25 accompanied by a proposed amended complaint identifying the Doe Defendants, or (b) file 26 a status report showing cause why Plaintiff has failed to file a motion for leave to amend 27 the Complaint. 28 l IT IS FURTHER ORDERED that Plaintiffs request to schedule a Case 2 || Management Conference 1s referred to the Honorable Steve B. Chu pursuant to Local Civil 3 Rules 16.2 and 16.1(c)(1).
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1 2 3 4 5 6 7 8 9 10 13 14 ROBERT A. ENRIQUEZ, Case No.: 23-cv-903-WQH-SBC
Plaintiff, v. 16 17 COUNTY OF SAN DIEGO, a municipal entity; DOE DEPUTY 18 #1, sued herein in his individual 19 capacity; DOE DEPUTY #2, sued herein in his individual capacity; 20 DOE DEPUTY #3, sued herein in 21 his individual capacity; and DOE DEPUTY #4, sued herein in his 22 individual capacity, 23 Defendants. 24 HAYES, Judge: 25 The matter before the Court is the Response to Order to Show Cause and Request for 26 Case Management Conference (“Response”) filed by Plaintiff Robert A. Enriquez 27 (“Plaintiff”). (ECF No. 13.) 28 2 On May 17, 2023, Plaintiff initiated this action by filing the Complaint against 3 Defendants County of San Diego (the “County”) and Doe Deputies #1, #2, #3, and #4 4 (collectively, the “Doe Defendants”). (ECF No. 1.) 5 On June 26, 2023, the County filed a Motion to Dismiss Complaint. (ECF No. 4.) 6 On March 26, 2024, the Court issued an Order granting in part and denying in part 7 the Motion to Dismiss. (ECF No. 10.) Specifically, the Order dismissed the claims against 8 the County without prejudice but denied the motion to dismiss the claims against the Doe 9 Defendants. Id. at 8–9. 10 On October 8, 2024, the Court issued an Order to Show Cause for failure to prosecute 11 because “[t]he docket reflect[ed] that no party ha[d] taken any action since the entry of the 12 Order granting in part and denying in part the Motion to Dismiss.” (ECF No. 12 at 2.) 13 On October 17, 2024, Plaintiff filed the Response, in the form of a declaration 14 submitted by Plaintiff’s counsel, George M. Lee (“Plaintiff’s Counsel”). (ECF No. 13.) 15 Plaintiff’s Counsel states that, “shortly” after the Court granted in part and denied in part 16 the Motion to Dismiss, Plaintiff’s Counsel “met and conferred with defendants’ counsel in 17 an attempt to evaluate the claims for possible early disposition and/or settlement.” Id. at 2. 18 Plaintiff’s Counsel states that Andrei Dumitrescu, counsel for the County (“County 19 Counsel”) “advised … that his office was in possession of a videotape that depicted the 20 incident giving rise to Plaintiff’s claims” and “indicated that he would be agreeable to 21 producing the videotape, subject to a stipulated protective order.” Id. Plaintiff’s Counsel 22 explains that he “expected to propose and raise the stipulated protective order at an 23 anticipated case management conference,” but no conference was scheduled. Id.1 24 25 1 The Court notes that, pursuant to this district’s Local Rules, an early neutral evaluation conference and 26 case management conference generally are not scheduled until after the filing of an answer. See S.D. Cal. Civ. L.R. 16.1(c)(1) (“Within forty-five (45) days of the filing of an answer, counsel and the parties must 27 appear before the assigned judge for an early neutral evaluation conference[.]” (emphasis added)); S.D. Cal. Civ. L.R. 16.1(c)(2)(b) (“If no settlement is reached at the ENE conference” and “no arbitration or 28 1 Plaintiff’s Counsel states that, after the Court issued the Order to Show Cause, 2 Plaintiff’s Counsel communicated with County Counsel, who took the position that “since 3 Plaintiff had not amended the complaint, the County was no longer a party to this action, 4 and that [the County] would not be willing to enter into any stipulated protective order, nor 5 would [the County] be willing to produce the videotape as previously offered.” Id. at 3. 6 Plaintiff’s Counsel states that County Counsel indicated that “the only avenue” for Plaintiff 7 to obtain information from the County related to identifying the Doe Defendants would be 8 through “subpoenas directed to the County for the information (incident reports and the 9 video tape) that was requested.” Id. at 4. 10 Plaintiff’s Counsel cites Wakefield v. Thompson for the proposition that “where the 11 identity of the alleged defendant [is not] known prior to the filing of a complaint[,] the 12 plaintiff should be given an opportunity through discovery to identify the unknown 13 defendants, unless it is clear that discovery would not uncover the identities, or that the 14 complaint would be dismissed on other grounds.” Id. (quoting 177 F.3d 1160, 1163 (9th 15 Cir. 1999)). Plaintiff’s Counsel asserts that “[t]hese matters should be discussed at a Case 16 Management Conference, at which time the parties can articulate their respective positions 17 as to whether the County has an obligation to participate in initial disclosures pursuant to 18 Rule 26(a), or otherwise to identify the identities of the Doe Officers.” Id. at 5. Plaintiff’s 19 Counsel requests that the Court “discharge the Order to Show Cause” and “order the parties 20 and their counsel—including County Counsel—to appear for a Case Management 21 Conference.” Id. 22 / / / 23 / / / 24 25 the ENE conference. The case management conference may be held at the conclusion of the ENE 26 conference.”); see also S.D. Cal. Civ. L.R. 16.1(a)(1) (explaining that, in this district, “[t]he timing of the Federal Rule 16(b) scheduling order is adjusted to accommodate the Early Neutral Evaluation Conference, 27 as allowed under Fed. R. Civ. P. 1”). As Plaintiff’s claims against the County were dismissed (ECF No. 10) and Plaintiff has not yet identified or served the Doe Defendants, no answer has been filed in this case 28 2 Plaintiff’s Counsel is correct that “where the identity of alleged defendants will not 3 be known prior to the filing of a complaint … the plaintiff should be given an opportunity 4 through discovery to identify the unknown defendants, unless it is clear that discovery 5 would not uncover the identities, or that the complaint would be dismissed on other 6 grounds.” Soo Park v. Thompson, 851 F.3d 910, 928 n.21 (9th Cir. 2017) (quoting Gillespie 7 v. Civiletti, 629 F.2d 637, 642–43 (9th Cir. 1980)). The Response indicates that Plaintiff 8 has not yet conducted discovery to identify the Doe Defendants. 9 Accordingly, Plaintiff shall expeditiously identify the Doe Defendants and move to 10 amend the Complaint to properly name those Defendants and adequately allege the 11 personal participation of each named Defendant in the alleged constitutional violations. 12 Although County Counsel has not entered a formal appearance on behalf of any Doe 13 Defendant, the County’s Motion to Dismiss requested dismissal and made legal arguments 14 on behalf of the Doe Defendants. (ECF No. 4-1 at 9–14.) The Court orders the County, and 15 its counsel, to cooperate with all appropriate discovery requests from Plaintiff aimed at 16 identifying the Doe Defendants who are alleged to have been employed by the County. 17 Plaintiff is cautioned that if, after an opportunity to conduct discovery, Plaintiff fails to 18 identify the Doe Defendants and adequately allege the personal participation of each named 19 Defendant in the alleged legal violations, the Complaint will be dismissed in its entirety. 21 IT IS HEREBY ORDERED that the Order to Show Cause (ECF No. 12) is 22 discharged. The case remains open. 23 IT IS FURTHER ORDERED that, no later than sixty (60) days after the date this 24 Order is entered, Plaintiff shall either (a) file a motion for leave to amend the Complaint, 25 accompanied by a proposed amended complaint identifying the Doe Defendants, or (b) file 26 a status report showing cause why Plaintiff has failed to file a motion for leave to amend 27 the Complaint. 28 l IT IS FURTHER ORDERED that Plaintiffs request to schedule a Case 2 || Management Conference 1s referred to the Honorable Steve B. Chu pursuant to Local Civil 3 Rules 16.2 and 16.1(c)(1). See S.D. Cal. Civil Rule 16.2 (“Magistrate judges may hold [a] 4 ||status conference ... in any case which has been referred to the magistrate judge by the 5 || district judge for that purpose.”); S.D. Cal. Civil Rule 16.1(c)(1) (“At any time after the 6 || filing of a complaint and before an answer has been filed, counsel for any party may make 7 request in writing to the judge in the case to hold a[ | ... status/case management 8 ||conference. ... The judge will hold such conferences as he or she deems appropriate.”). 9 Dated: October 28, 2024 itt Z. A a 10 Hon. William Q. Hayes 11 United States District Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28