(PC) Arzaga v. Santiago

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL ARZAGA, No. 2:18-cv-0313 KJM KJN P 12 Plaintiff, 13 v. ORDER AND REVISED SCHEDULING ORDER 14 E. SANTIAGO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se. Plaintiff is not proceeding in forma 18 pauperis, but rather paid the court’s filing fee. Two motions by plaintiff are addressed by this 19 order. 20 Motion to Stay Discovery 21 On October 13, 2020, plaintiff filed a motion to stay discovery pending his return from the 22 Los Angeles County Jail for an alleged resentencing hearing. On October 23, 2020, pursuant to 23 the court’s order, defendants Gisler and Pak filed a response confirming that no removal orders 24 were pending for plaintiff, and no hearings were presently scheduled for plaintiff in the Los 25 Angeles County Superior Court case. (ECF No. 59 at 1-2.) Moreover, plaintiff’s deposition was 26 noticed for October 26, 2020, and because plaintiff was not being transferred, defendants 27 contemplated the deposition would go forward. (ECF No. 59 at 2.) On October 27, 2020, 28 defendants confirmed that plaintiff’s deposition was held. (ECF No. 61.) 1 The discovery and scheduling order provides that discovery closed on November 3, 2020. 2 In light of plaintiff not being transferred during the discovery period, plaintiff has failed to show 3 good cause to stay discovery. Plaintiff’s motion to stay discovery is denied. 4 Plaintiff’s request for production of documents was pending when plaintiff filed his 5 motion to stay, and the undersigned granted defendants’ second request for an extension of time 6 to November 16, 2020, in which to file their responses. (ECF No. 62.) In defendants’ 7 supplemental response, defendants noted that at the deposition, plaintiff objected to defendants’ 8 request for a second extension of time. Because defendants’ responses were not provided to 9 plaintiff until after discovery closed, plaintiff is granted an additional thirty days in which to file a 10 motion to compel further production of documents if he is dissatisfied with their responses. 11 Motion to Locate Unserved Defendants 12 Despite the court’s prior orders advising plaintiff that he must seek such information 13 through discovery and other means (ECF Nos. 47, 50), plaintiff filed a request for court order 14 “directing the warden and defendants to provide all information” on defendants Santiago, 15 Victoriano, and Haluik. (ECF No. 51 at 1.) Plaintiff states that in the alternative, if service 16 cannot be completed, he asks the court to “allow such defendants to be identified as John Does 1, 17 2 and 3 until plaintiff can obtain the names and information by way of discovery.” (ECF No. 51 18 at 4.) Such statement suggests that plaintiff has not attempted to discover the last known address 19 or identity (if unknown) of these three defendants by propounding interrogatories or a request for 20 production of documents to defendants Gisler and Pak, although plaintiff did propound a request 21 for production of documents. (ECF No. 54.) It is also unclear whether plaintiff has attempted to 22 locate these unserved defendants by searching California licensing information available online,1 23 or using the California Public Records Act, Calif. Gov’t. Code § § 6250, et seq., or other means 24 available to plaintiff. 25 Moreover, plaintiff’s request for court order is not the appropriate method to obtain 26 information from the warden, who is not a party to this action. Rather, if plaintiff is unable to 27 1 The California Department of Consumer Affairs maintains an online licensing and enforcement 28 system. 1 locate such defendants through discovery or other means, he may attempt to obtain records of 2 their last known location through a subpoena duces tecum directed to the appropriate non-party. 3 However, because plaintiff is not proceeding in forma pauperis, it is plaintiff's responsibility to 4 complete the form subpoena duces tecum and to serve it upon the nonparty in possession, custody 5 or control of the documents or items plaintiff seeks to have produced, along with any witness 6 and/or mileage fees, if applicable. See Fed. R. Civ. P. 45(a), (b)(1); Tedder v. Odel, 890 F.2d 210 7 (9th Cir. 1989). In other words, plaintiff must make arrangements to serve the subpoena duces 8 tecum and is responsible for the cost of such service. Plaintiff should carefully read Rule 45(b) of 9 the Federal Rules of Civil Procedure. 10 Plaintiff’s motion was served before the discovery deadline expired. In addition, 11 defendants Gisler and Pak were granted two extensions of time to respond to plaintiff’s request 12 for production of documents, and plaintiff may now be able to better identify the names of the 13 unserved defendants by reviewing such documents. Therefore, in an abundance of caution, 14 plaintiff is granted an extension of time to locate and serve such defendants. However, plaintiff 15 must forthwith take steps to discover the addresses and true identities of defendants Santiago, 16 Haluik and Victoriano, and the court will extend the discovery period only so that plaintiff may 17 forthwith propound such discovery to defendants Gisler and Pak and avail himself of other means 18 described above. Plaintiff should exhaust such efforts before requesting the court issue a 19 subpoena duces tecum to a non-party. 20 Finally, if plaintiff learns that an individual has been improperly named as a defendant, 21 plaintiff must file a motion to substitute or correct the name of such defendant. 22 Revised Scheduling Order 23 In light of the above, the discovery deadline is extended until March 1, 2021, solely for 24 the purpose of locating and serving defendants Santiago, Victoriano, and Haluik, and to resolve 25 any motion to compel further responses to plaintiff’s August 15, 2020 request for production of 26 documents. In all other respects, discovery is closed. The pretrial motions deadline is extended 27 to June 1, 2021. 28 //// 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiffs motion to stay discovery (ECF No. 57) is denied. 3 2. Plaintiff is granted thirty days in which to file a motion to compel further responses to 4 | his August 15, 2020 request for production of documents. 5 3. Plaintiff's September 14, 2020 motion (ECF No. 51) is partially granted. 6 4. Plaintiffs time for service of process on defendants Santiago, Haluik and Victoriano is 7 | extended for 120 days from the date of this order. 8 5. The discovery deadline is extended until March 1, 2021, for the sole purposes 9 | described above. 10 6. All pretrial motions, except motions to compel discovery, shall be filed on or before 11 } June 1, 2021. In all other respects, the July 2, 2020 scheduling order (ECF No 48) remains in 12 | effect. 13 Dated: December 1, 2020 i Aectl Aharon 15 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 16 || /arza0313.sty 17 18 19 20 21 22 23 24 25 26 27 28