Fernandez v. Duarte

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FRANK J. FERNANDEZ, Case No.: 3:22-cv-00446-BAS-VET

12 Plaintiff, ORDER GRANTING EX PARTE 13 v. MOTION FOR RELIEF

14 E. DUARTE, [Doc. No. 105] Defendant. 15 16 17 18 Before the Court is Plaintiff’s Ex Parte Motion for Relief. Doc. No. 105 (“Ex Parte 19 Motion”). Therein, Plaintiff requests a conference call with the Court for purposes of 20 resolving a discovery dispute concerning “four interrogatories and request for production 21 of documents” after meet and confer efforts purportedly failed. Id. at 1–2. In his response, 22 Defendant disagrees with Plaintiff’s characterization of the meet and confer efforts but 23 does not object to Plaintiff’s request for a conference call. Doc. No. 107 at 2. 24 As an initial matter, the Court notes that fact discovery in this case closed on 25 November 4, 2024. Doc. No. 73 at 2. The initial scheduling order in this case, dated 26 November 6, 2023, required fact discovery to be completed by April 5, 2024. Doc. No. 33 27 at 3. However, the Court granted multiple requests for extensions and permitted fact 28 discovery to occur for nearly twelve (12) months. See Doc. Nos. 58, 73. The Court specified 1 that discovery must be initiated sufficiently in advance so that it may be completed by the 2 cutoff date and that any related meet and confer efforts must occur promptly. Doc. No. 73 3 at 2. The undersigned’s Civil Chambers Rules further specify that parties must initiate a 4 conference call with Chambers within forty-five (45) days of the event giving rise to a 5 discovery dispute. J. Torres Civ. Chambers R. VIII.E. The date of this triggering event is 6 not the date of impasse, but rather when the discovery response was due. Id. 7 Here, neither party addresses when the interrogatories and request for production at 8 issue were served or when Defendant’s responses were due. Even if the Court assumes 9 discovery was served just before the cut-off, Plaintiff’s request for a joint call to Chambers 10 is well past relevant deadlines. For instance, if the discovery requests were served on 11 November 4, 2024, the last day of fact discovery, Defendant’s responses were due 12 December 4, 2024. See Fed. R. Civ. P. 33(b)(2), 34(b)(2)(A). Assuming the above scenario, 13 a joint call to Chambers concerning Defendant’s responses or failure to respond was 14 required by January 17, 2025. See J. Torres Civ. Chambers R. VIII.E. Understanding that 15 Plaintiff is a pro se prisoner and cannot initiate a joint call, a request for a joint call was at 16 least required by that date. See Munoz v. United States, 28 F.4th 973, 978 (9th Cir. 2022) 17 (“…pro se litigants, whatever their ability level, are subject to the same procedural 18 requirements as other litigants.”) 19 Moreover, the Court has repeatedly emphasized the importance of conducting meet 20 and confer efforts promptly and following discovery dispute procedures closely. After the 21 Mandatory Settlement Conference held on March 13, 2024, the Court ordered the parties 22 to meet and confer concerning document production and discovery. Doc. No. 43. The Court 23 later addressed the parties’ discovery disputes during a Discovery Conference and ordered 24 further meet and confer efforts. Doc. No. 67. Thus, Plaintiff was aware of the requirement 25 to promptly meet and confer regarding discovery disputes, as well as the procedures to 26 follow thereafter. See, e.g. Doc. Nos. 78, 81. 27 At this juncture, the discovery dispute underlying Plaintiff’s Ex Parte Motion 28 appears untimely. The 12-month fact discovery period concluded over ninety days ago and 1 || neither party explains why the referenced discovery requests or dispute were delayed until 2 || this point. However, “courts must apply considerable leeway when assessing whether a pro 3 civil litigant’s failure to comply strictly with time limits... should be excused for ‘good 4 ||cause,’” especially when that litigant is incarcerated.” McGuckin v. Smith, 974 F.2d. 1050, 5 || 1058 (9th Cir. 1992), overruled on other grounds by WMX Techs v. Miller, 104 F.3d 1133, 6 || 1136 (9th Cir. 1997) (emphasis in original). To ensure Plaintiff has an adequate opportunity 7 ||to explain his apparent failure to comply with the aforementioned deadlines, a Discovery 8 Conference is appropriate. Therefore, based on a review of the Ex Parte Motion and the 9 || record, the Court GRANTS the Ex Parte Motion. The Court ORDERS the following: 10 1. A Discovery Conference will be held on March 10, 2025 at 10:30 a.m. before 11 || Magistrate Judge Valerie E. Torres by Zoom video conference. 12 2. Defense counsel shall coordinate Plaintiff's remote appearance. The Court 13 || will send video conference information to defense counsel two business days prior to the 14 || Discovery Conference. 15 IT IS SO ORDERED. 16 17 Dated: February 28, 2025 Jrech— 18 Honorable Valerie E. Torres 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28