Moore v. Duran

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MERRICK MOORE, Case No.: 23-cv-194-GPC-DDL

12 Plaintiff, ORDER GRANTING UNOPPOSED 13 v. MOTION TO REOPEN DISCOVERY FOR LIMITED PURPOSE 14 J.J. DURAN, et al. 15 [Dkt. No. 87] Defendants. 16 17 Before the Court are Plaintiff’s Unopposed Motion to Reopen Discovery to Depose 18 Defendants and Unopposed Motion to Extend the Time for Service by USMS to Defendant 19 Manquero. Dkt. No. 87. This Order resolves the request to reopen discovery only. The 20 issue of extended time to serve Defendant Manquero remains pending before the 21 Honorable Gonzalo P. Curiel. For the reasons stated below, the Court GRANTS the 22 unopposed motion to reopen discovery and GRANTS Plaintiff’s counsel’s concurrent 23 request for payment of the costs of the depositions from the Pro Bono Fund in an amount 24 not to exceed $1,000. 25 I. 26 BACKGROUND 27 Plaintiff filed his complaint pursuant to 42 U.S.C. § 1983 on February 1, 2023. Dkt. 28 No. 1. Briefly stated, Plaintiff alleges that on March 1, 2018, after an institutional 1 classification committee hearing, Defendants used excessive force against him and 2 Defendant Duran sexually assaulted him. See generally id. 3 Plaintiff’s Eighth Amendment claim survived preliminary screening. Dkt. No. 4. 4 Defendants C. Davis, W. Smith, P. Bracamonte, V. Cortes, A. Gonzalez, J. Valencia, J. 5 Duran, S. Searless, and P. Covello (collectively, “Defendants”) answered the complaint on 6 July 26, 2023.1 Dkt. No. 21. On October 4, 2023, the Court held a Case Management 7 Conference, and issued a Scheduling Order the next day. Dkt. No. 38. Pursuant to the 8 Scheduling Order, fact discovery closed on March 4, 2024, although some discovery was 9 completed after that date as the Court and the parties worked to resolve various discovery 10 disputes. See, e.g., Dkt. No. 65. 11 On June 18, 2024, Defendants moved for summary judgment. Dkt. No. 68. On 12 September 20, 2024, Judge Curiel denied the motion. Dkt. No. 77. On October 7, 2024, 13 Judge Curiel appointed Martin G. Molina to represent Plaintiff pro bono for purposes of 14 trial pursuant to General Order 596. Dkt. No. 80. Mr. Molina entered his appearance on 15 October 24, 2024. Dkt. No. 83. The undersigned held a Status Conference on November 16 6, 2024, during which counsel for Defendants and Mr. Molina reported they had reached 17 an agreement that Defendants would sit for deposition before trial. On the Court’s 18 instruction, this motion followed. 19 II. 20 DISCUSSION 21 A. Request to Reopen Discovery to Depose Defendants 22 Once issued, a Scheduling Order can only be modified “for good cause and with the 23 court’s consent.” Fed. R. Civ. P. 16(b)(4). In assessing good cause, “the focus of the 24 inquiry is upon the moving party’s reasons for seeking modification.” Kamal v. Eden 25 / / / 26 27 28 1 Creamery, LLC, 88 F.4th 1268, 1277 (9th Cir. 2023). Although “[i]t is a widely followed 2 principle that the arrival of new counsel does not entitle parties to conduct additional 3 discovery . . . ,” see Hunt v. City of Los Angeles, 2021 WL 768248, at *9 n.12 (C.D. Cal. 4 Jan. 26, 2021), this rule is often “relaxed” where pro bono counsel enters the case “after 5 the discovery deadlines have closed.” See Draper v. Rosario, No. CIV. S-10-0032 KJM, 6 2013 WL 6198945, at *3 (E.D. Cal. Nov. 27, 2013). Ultimately, the decision “[w]hether 7 to reopen discovery rests in the court’s sound discretion.” See Holmes v. Estock, No. 8 16cv2458-MMA-BLM, 2022 WL 16541182, at *2 (S.D. Cal. Oct. 28, 2022). 9 On the record before it, the Court concludes good cause exists to reopen discovery 10 for the limited purpose of deposing Defendants. Defendants’ depositions are relevant to 11 plaintiff’s claims and proportional to the needs of the case, and will facilitate trial on the 12 merits. See Holmes, 2022 WL 16541182, at *3 (noting the court may consider “the 13 necessity of additional discovery for trial preparation and for resolution of the matter on 14 the merits”). That Defendants do not oppose Plaintiff’s request allays any concerns of 15 prejudice. See Kamal, 88 F.4th at 1277 (identifying “the existence or degree of prejudice” 16 to nonmoving parties as a consideration in the good cause analysis under Rule 16). 17 Accordingly, the Court GRANTS Plaintiff’s request to reopen discovery to depose 18 Defendants. No other discovery is permitted by this Order. All depositions must be 19 completed within 60 days of the date of this Order. The Court will issue an amended 20 Scheduling Order setting trial-related dates in due course. 21 B. Request for Disbursement from the Pro Bono Fund 22 To facilitate pro bono representation, this District’s Pro Bono Fund is used for 23 “reimbursement of out-of-pocket expenses, necessarily incurred by court-appointed 24 attorneys representing indigents pro bono in civil cases . . . provided that approval for such 25 expenses is first obtained from the magistrate judge assigned the case . . .” CivLR 26 27 2 Unless otherwise noted, internal quotation marks, ellipses, brackets, citations, 28 1 || 83.8.a.2.a; see also General Order No. 596 (adopting a plan for representation of pro se 2 || litigants and noting that pro bono counsel “may be reimbursed for their necessarily incurred 3 || out-of-pocket expenses). 4 Here, Plaintiff's counsel “anticipates” the cost of the depositions will be $1,000 5 “based on the pricing and market rate for such services in this district.”” Dkt. No. 87-1 at 6 || 7-8. Although the Court agrees generally that deposition costs are “necessarily incurred 7 ||expenses” under Civil Local Rule 83.8.a.2.a, it cannot determine from the current record 8 ||the amount of such expenses. After the depositions are completed, Plaintiffs counsel may 9 || renew his request for reimbursement from the Court’s Pro Bono Fund. Any such renewed 10 ||request should be supported by a declaration from counsel and documentation of the 11 || expenses incurred. 12 Ii. 13 CONCLUSION 14 For the reasons stated above, the Court GRANTS Plaintiff's unopposed motion to 15 |/reopen discovery for the limited purpose of deposing Defendants, and further ORDERS 16 as follows: 17 1. All depositions must be completed by not later than January 15, 2025. 18 2. No other discovery is permitted by this Order. 19 || IT IS SO ORDERED. 20 || Dated: November 15, 2024 _—_— 21 Tb hohe

23 United States Magistrate Judge 24 25 26 27 28