MICHAEL J. SENG, Magistrate Judge.
Plaintiff is a prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) and 28 U.S.C. § 1331. The action proceeds on a Fifth Amendment due process claim against Defendants A, B, and Gonzaga.
Before the Court are Plaintiff's second motion for a 45-day extension of time to amend pleadings (ECF No. 81.); motion to compel production of documents, electronically stored information, and tangible things (ECF No. 82.); motion to compel answers to Plaintiff's first set of interrogatories (ECF No. 83.); motion to compel answers to Plaintiff's request for admissions, set one (ECF No. 95.); motion to extend the discovery cut-off date for 90 days (ECF No. 84.); motion for leave to serve additional request for admissions (ECF No. 85.); motion for leave to serve ten additional interrogatories (ECF No. 86.); motion for leave to take written deposition of Defendant Gonzaga and non-party witnesses (ECF No. 93.); Rule 54(b) motion (ECF No. 113.); motion for leave to relate back and supplement pursuant to Fed. R. Civ. P. 15(c) and (d) (ECF No. 114.); motion for leave to amend pleadings (ECF No. 115.); motion for partial judgment pursuant to Fed. R. Civ. P. 56(a) (ECF No. 116.); motion for leave to conduct additional discovery and add defendants (ECF No. 118.); and motion for leave to join or add claims against Defendant Gonzaga (ECF No. 119.). Defendant Gonzaga filed an opposition to all of the motions except for Plaintiff's motion for leave to take written depositions (ECF No. 93.) and Plaintiff's Rule 54(b) motion (ECF No. 113). (ECF Nos. 96, 97, 99, 100, 101, 120 & 121.) Plaintiff replied to the majority of the oppositions; for the others, the time to reply has expired. (ECF Nos. 103, 104, 105, 106, 109, & 110.). The motions are deemed submitted. Local Rule 230(l).
The decision to grant or deny leave to amend pleadings is within the trial court's discretion. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996). A party seeking leave to amend must demonstrate that amendment is proper under Federal Rule of Civil Procedure 15. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). Under Rule 15(a)(2), the Court should freely give leave to amend a pleading "when justice so requires." The Court should apply this policy "with extreme liberality." Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (quoting Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)). "If the underlying facts or circumstances relied upon by a [party] may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962).
However, a district court may deny leave to amend "where there is `any apparent or declared reason' for doing so, including undue delay, undue prejudice to the opposing party or futility of the amendment." Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 772 (9th Cir. 1991) (quoting Foman, 371 U.S. at 182). These factors are not to be given equal weight. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Prejudice to the opposing party must be given the greatest weight. Id. "Absent prejudice, or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Id.
Plaintiff filed the following four motions essentially requesting leave to amend his Seventh Amended Complaint: 1) second motion for a 45-day extension of time to amend pleadings; 2) motion for leave to relate back and supplement pursuant to Fed. R. Civ. P. 15(c) and (d); 3) motion for leave to amend pleadings; and 4) motion for leave to join or add claims against Defendant Gonzaga. (ECF Nos. 81, 114, 115, & 119.)
The deadline to amend pleadings in this case was September 30, 2014. Plaintiff argues that he timely filed a motion for an extension of time to amend on September 21, 2014, but did not hear back from the Court. Therefore, he filed a "second" motion. He contends that good cause exists because: 1) Defendant Gonzaga has not fully responded to his discovery requests; 2) this case is complex and he is indigent proceeding pro se; 3) during discovery, he "learned information concerning additional claims against Defendant Gonzaga" and new claims against Warden Dennis Smith; 4) on October 24, 2014, he learned that Defendants A and B could be one of six named individuals; and 5) he did not learn of information regarding Defendant Gonzaga's credibility until he received her responses to his request for admissions, set one. Plaintiff also seeks to add unidentified legal claims and a new party and requests additional time to brief the issue because of his inability to access the law library due to a lockdown at Atwater prison.
Defendant Gonzaga argues that the deadline to amend has passed, and Plaintiff has not shown good cause.
There is no record on the docket of Plaintiff timely seeking leave to amend in September 2014. Additionally, Plaintiff failed to submit a copy of his proposed amended complaint with any of his motions. See Local Rule 137(c).
The only claim Plaintiff identifies adding against Defendant Gonzaga is "supervisory liability." (ECF No. 119.) Government officials may not be held liable for the actions of their subordinates under a theory of respondeat superior. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 691 (1978). Liability may be imposed on supervisory defendants under § 1983 only if the supervisor: (1) personally participated in the deprivation of constitutional rights or directed the violations or (2) knew of the violations and failed to act to prevent them. Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). In screening Plaintiff's Seventh Amended Complaint, the Court found that Plaintiff stated a claim against Defendant Gonzaga, who he identified as the
Plaintiff does not specify the nature or substance of any additional claims against Defendants or any new party. Therefore, the Court cannot determine what, if any, new claims Plaintiff seeks to add against Defendants or any new party and whether good cause exists to do so.
If Plaintiff, through the discovery process, is able to identify the names of unknown Defendants A and B, he may file a motion seeking leave to amend to substitute the Defendants with their real names. In so doing, Plaintiff should specifically identify which individual he seeks to substitute for each unknown Defendant currently named in the action and indicate when and how he learned of their identities.
"The discovery process is subject to the overriding limitation of good faith." Asea v. S. Pac. Transp. Co., 669 F.2d 1242, 1246 (9th Cir. 1981). "Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). The Court also may order discovery of any relevant matter with a showing of good cause. Id. Information is relevant if it "appears reasonably calculated to lead to the discovery of admissible evidence." Id. "In each instance, the determination whether . . . information is discoverable because it is relevant to the claims or defenses depends on the circumstances of the pending action." Fed. R. Civ. P. 26 advisory committee's note (2000 Amendment) (Subdivision (b)(1)).
Generally, if the responding party objects to a discovery request, the party moving to compel bears the burden of demonstrating why the objections are not justified. Grabek v. Dickinson, 2012 WL 113799, at *1 (E.D. Cal. Jan. 13, 2012); Ellis v. Cambra, 2008 WL 860523, at *4 (E.D. Cal. Mar. 27, 2008). The moving party "at a minimum . . . has the burden of informing the court which discovery requests are the subject of his motion to compel, which of the . . . responses are disputed, why . . . [the] responses are deficient, why the . . . objections are not justified, and why the information he seeks through discovery is relevant . . ." Walker v. Karelas, 2009 WL 3075575, at *1 (E.D. Cal. Sep. 21, 2009).
The Court must limit discovery if the burden of the proposed discovery "outweighs its likely benefit." Fed. R. Civ. P. 26(b)(2)(C)(iii).
The requests and responses at issue and the Court's ruling on each are as follows:
Defendant Gonzaga argues that Plaintiff's motion to compel should be denied because he fails to identify which responses he disputes or state why the responses are deficient. In Plaintiff's reply, he specifies which responses he disputes, but the motion to compel production will nevertheless be denied for the reasons set forth below.
Plaintiff argues that the audio recording will establish his need to communicate with Appellate counsel. While that may be true, Defendant cannot produce what he does not have. Even if such material existed, Plaintiff has not established how the audio recordings might prove relevant to his case or lead to the discovery of admissible evidence.
Defendant's objections are well taken. Request No. 10 does not request production of documents, and if it did, it would indeed be overly broad and appear to call for information which is not relevant to his due process claim or likely to lead to discoverable evidence. Plaintiff has not articulated why and how Defendant's objection is deficient and not justified.
Plaintiff contends that he disclosed documents to Defendant reflecting calls by his attorney to USP Atwater Counselors. It appears then that Plaintiff possesses the documents relevant to his request. Regardless, Defendant's sworn response says no such documents exist. She cannot be ordered to produce that which she does not have.
Plaintiff argues the documents are relevant to his claim because they will indicate which employee was working in the mail room and therefore who rejected his legal mail. While the documents may be relevant to Plaintiff's claim, Defendant cannot produce what she does not have.
Plaintiff argues that this information is relevant because an inmate appears on the roster when he is sending or receiving mail. While the documents may be relevant to Plaintiff's claim, Defendant cannot produce what she does not have.
Plaintiff argues that the documents requested are relevant because they will indicate whether similar complaints/grievances were made, against whom, and who else was aware of the complaints/grievances. Plaintiff has not shown that the requested documents are likely to lead to the discovery of admissible evidence. See Valenzuela v. Smith, 2006 U.S. Dist. LEXIS 6078, *5-6 (E.D. Cal. Feb. 15, 2006) (request for all complaints and investigations against defendants to prove a pattern of medical indifference denied as overbroad and burdensome and for failure to show likelihood of leading to discoverable evidence). The fact other complaints may have been made against Defendant is not relevant to the issue of whether Plaintiff's complaints in this case are justified. Fed. R. Evid. 404(a)(1).
Plaintiff argues that he was unable to specify dates because Defendant refused to participate in the discovery process. However, it does not appear from Defendant's objection that she is disputing the specificity of the dates. Plaintiff fails to explain the relevancy of the information. Defendant's objection on relevancy and over breadth is well taken.
Plaintiff argues that the documents are likely to lead to admissible evidence because the individuals listed likely have information regarding his claims. However, Plaintiff's request is not for "documents"; it is a request for Defendant to provide detailed information. Additionally, Plaintiff fails to explain why and how the requested information might be discoverable and why Defendant's objection is deficient and unjustified.
Plaintiff contends that the documents will lead to discoverable information but fails to articulate why. Defendant's objections are well taken, and Plaintiff makes no argument that they are deficient and unjustified.
Plaintiff contends the documents can be obtained by "implementing search features naming Plaintiff's full name and Federal Register Number." Plaintiff's argument appears to be in response to Defendant's objection regarding the ambiguity of the phrase "all e-mail information." However, Plaintiff has not indicated how the information is relevant, why the request is not overbroad and burdensome, or why the remainder of Defendant's objection is deficient and not justified.
Plaintiff argues that Defendant's employer (the Department of Justice or BOP) has the documents and therefore they are within the possession, custody or control of Defendant. However, Plaintiff has not indicated how the audio recordings or a court reporter's "shorthand notes" of a trial in an unrelated case are relevant to the instant action. Defendant's objection is sustained.
Plaintiff argues that Defendant Gonzaga has been uncooperative and that he has not been able to communicate with her regarding discovery matters. Plaintiff fails to articulate how Defendant's response is deficient. It appears to be responsive.
Plaintiff argues that Defendant's employer (the Department of Justice or BOP) has the documents and therefore they are within the possession, custody or control of Defendant. However, Plaintiff has not indicated how the requested information is relevant, reasonably limited, or why Defendant's objections are deficient and not justified.
Plaintiff also lists Request Nos. 8 and 43 in his motion. However, Plaintiff fails to meet his threshold burden of detailing why he believes Defendant's responses to these two requests are deficient, why Defendant's objections are not justified, and why the information he seeks through discovery is relevant to the prosecution of this action.
A party may propound interrogatories "relat[ing] to any matter that may be inquired into under Rule 26(b)." Fed. R. Civ. P. 33(a)(2). "An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact . . ." Fed. R. Civ. P. 33(a)(2).
The responding party is obligated to respond to the interrogatories to the fullest extent possible. See Fed. R. Civ. P. 33(b)(3). Any objections "must be stated with specificity." Fed. R. Civ. P. 33(b)(4). "The responding party shall use common sense and reason" in its responses; "hyper-technical, quibbling, or evasive objections will not be" viewed favorably by the Court. Haney v. Saldana, 2010 U.S. Dist. LEXIS 93447 at *9 (E.D. Cal. Aug. 24, 2010). Further, the responding party has a duty to supplement any responses if the information sought is later obtained or the response provided needs correction. Fed. R. Civ. P. 26(e)(1)(A).
Defendant Gonzaga argues that Plaintiff's motion to compel should be denied because his blanket request to compel answers to all of the interrogatories fails to meet his initial burden of articulating what responses he disputes and why they are inadequate. In Plaintiff's reply, he specifies which responses are in dispute and argues that the information requested will lead to discoverable evidence. He also argues that Defendant Gonzaga has not demonstrated that she attempted to acquire the requested information or that it is irrelevant to Plaintiff's claims.
Plaintiff argues that he is not seeking complaints from other inmates' families and that the information will lead to discoverable evidence. The Court finds the interrogatory to be grossly overbroad and to call for information not properly discoverable. Plaintiff fails to explain how the information is relevant and why the request is not overly broad and unduly burdensome. He also fails to dispute that the requested information is "inappropriate under the Correspondence policies."
Plaintiff misconstrues his burden in bringing a motion to compel. He argues that Defendant Gonzaga failed to prove she attempted to obtain the information or how it is overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff — not Defendant — carries the initial burden of providing to the Court why Defendant's objection is deficient and not justified. Plaintiff has not met this threshold burden for these two interrogatories.
Plaintiff disregards Defendant Gonzaga's objection and argues that she failed to identify any persons in response to the request. Plaintiff fails to meet his threshold burden to overrule Defendant's objection to this interrogatory. Additionally, it appears from Defendant's response that she did identify the relevant persons to Plaintiff's request in her response to interrogatory no. 1.
Plaintiff argues that discovery is not complete because Defendant is uncooperative and has failed to provide responses to his request. Even if the Court accepts this as true, Plaintiff has not alleged why the requested information is relevant and discoverable, and how Defendant's response is incomplete, deficient, and unjustified.
"A party may serve on any other party a written request to admit . . . the truth of any matters within the scope of Rule 26(b)(1) relating to . . . facts, the application of law to fact, or opinions about either; and . . . the genuineness of any described documents." Fed. R. Civ. P. 36(a)(1). "If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it . . . The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny." Fed. R. Civ. P. 36(a)(4).
As an initial matter, Plaintiff filed his motion to compel answers to his requests for admissions, set one on December 4, 2014 after the deadline for the close of discovery in this case. (ECF Nos. 73 & 95.) Given Defendant does not object to the motion on untimeliness grounds and Plaintiff is a pro se litigant, it will not be denied on these grounds.
In Plaintiff's motion to compel, he listed only the numbers for the requests that he objected to without providing further detail and argued that Defendant's requests were unreasonable and that his requests would assist him in identifying the unknown defendants. Defendant Gonzaga argues that Plaintiff failed to articulate meaningful grounds for his motion, attach the requests to his motion, or meet the minimum requirements for disputing discovery responses. In Plaintiff's reply, he lists the following requests, responses, and arguments as to why his motion should be granted. The Court's analysis and ruling on each is detailed below.
Plaintiff argues that the response is insufficient because Defendant Gonzaga failed to explain why she cannot respond, why the information is not within her ability to obtain, and what attempts were made to acquire the information.
While Defendant may fail to admit or deny a request for admission based on a lack of information, she must state that she "has made reasonable inquiry and that the information [she] knows or can readily obtain is insufficient to enable [her] to admit or deny." Fed. R. Civ. P. 36(a)(4). Defendant has failed to do so, and therefore Plaintiff's motion is granted as to this request. Defendant must amend her response in accordance with Fed. R. Civ. P. 36(a).
Plaintiff argues that the response is insufficient because Defendant Gonzaga failed to explain why she cannot respond, why the information is not within her ability to obtain, and what attempts were made to acquire the information.
Defendant has failed to indicate that she "made reasonable inquiry" to confirm the date and time of the conversation and that after such inquiry the information she knows or can readily obtain is still "insufficient to enable [her] to admit or deny." Fed. R. Civ. P. 36(a)(4). Plaintiff's motion is granted as to this request. Defendant must amend her response in accordance with Fed. R. Civ. P. 36(a).
Plaintiff argues that the information is relevant because it concerns inmate mail and relates to his due process claims.
While the request is limited to inmate complaints regarding mail, Plaintiff has not shown that the requested documents are likely to lead to the discovery of admissible evidence. See Valenzuela v. Smith, 2006 U.S. Dist. LEXIS 6078, *5-6 (E.D. Cal. Feb. 15, 2006) (request for all complaints and investigations against defendants to prove a pattern of medical indifference denied as overbroad and burdensome and for failure to show likelihood of leading to discoverable evidence). Therefore, Defendant's objection is sustained.
Plaintiff clarifies that he is requesting whether Defendant was required to give notice to an inmate of any mail that was rejected due to policy or other federal regulatory reasons.
Plaintiff's request and clarification is reasonably intelligible. Defendant shall provide a response in accordance with Fed. R. Civ. P. 36 or indicate a further objection.
Plaintiff argues that the response is insufficient because Defendant Gonzaga failed to explain why she cannot respond, why the information is not within her ability to obtain, and what attempts were made to acquire the information.
Defendant has failed to indicate that she "made reasonable inquiry" to confirm the date and time of the conversation and that after such inquiry the information she knows or can readily obtain is still "insufficient to enable [her] to admit or deny." Fed. R. Civ. P. 36(a)(4). Defendant must amend her response with respect to the date and time of the conversation in accordance with Fed. R. Civ. P. 36(a).
Plaintiff argues that the response is insufficient because Defendant Gonzaga failed to explain why she cannot respond, why the information is not within her ability to obtain, and what attempts were made to acquire the information.
While Defendant may fail to admit or deny a request for admission based on a lack of information, she must state that she "has made reasonable inquiry and that the information [she] knows or can readily obtain is insufficient to enable [her] to admit or deny." Fed. R. Civ. P. 36(a)(4). Defendant has failed to do so. Defendant must amend her response in accordance with Fed. R. Civ. P. 36(a).
Plaintiff argues the request is reasonable and goes to the credibility of Defendant. Plaintiff's requests are overbroad and unduly burdensome. They are not tailored to the timeframe of his complaint or to Defendant Gonzaga's role as a mailroom supervisor. Additionally, it is not likely to lead to the discovery of admissible evidence. See Fed. R. Evid. 404; see also Valenzuela v. Smith, 2006 U.S. Dist. LEXIS 6078, *5-6 (E.D. Cal. Feb. 15, 2006) (request for all complaints and investigations against defendants to prove a pattern of medical indifference denied as overbroad and burdensome and for failure to show likelihood of leading to discoverable evidence). Whether or not a party has been accused of lying or has lied "in the past" is not relevant except as to show character, and character evidence is not admissible to show behavior on the occasion at issue. Fed. R. Evid. 404.
Plaintiff argues that the response is insufficient because Defendant Gonzaga failed to explain why she cannot respond, why the information is not within her ability to obtain, and what attempts were made to acquire the information.
While Defendant may fail to admit or deny a request for admission based on a lack of information, she must state that she "has made reasonable inquiry and that the information [she] knows or can readily obtain is insufficient to enable [her] to admit or deny." Fed. R. Civ. P. 36(a)(4). Defendant has failed to do so. Defendant must amend her response in accordance with Fed. R. Civ. P. 36(a).
Plaintiff argues that the responses are insufficient because Defendant Gonzaga failed to explain why she cannot respond, why the information is not within her ability to obtain, and what attempts were made to acquire the information.
Defendant fails to state she "has made reasonable inquiry and that the information [she] knows or can readily obtain is insufficient to enable [her] to admit or deny." Fed. R. Civ. P. 36(a)(4). Defendant must amend her responses in accordance with Fed. R. Civ. P. 36(a).
Plaintiff argues that the responses are insufficient because Defendant Gonzaga failed to explain why she cannot respond, why the information is not within her ability to obtain, and what attempts were made to acquire the information.
Defendant fails to state she "has made reasonable inquiry and that the information [she] knows or can readily obtain is insufficient to enable [her] to admit or deny." Fed. R. Civ. P. 36(a)(4). Defendant must amend her responses in accordance with Fed. R. Civ. P. 36(a).
Plaintiff argues the request is reasonable and goes to the credibility of Defendant. Defendant's objection as to relevance is sustained. While the requests are reasonably intelligible, Plaintiff has not articulated how the information is relevant or that it will likely lead to admissible evidence.
Plaintiff contends that the objections are unreasonable because the request seeks to know whether Defendant had to request permission prior to rejecting inmate mail.
Plaintiff's request and clarification is reasonably intelligible. Defendant shall provide a response in accordance with Fed. R. Civ. P. 36 or indicate a further objection.
Plaintiff's conclusory statement that communication with the U.S. Attorney is relevant to his inmate mail claims is unsupported by any facts or explanation as to how or why such communication would be relevant. Defendant's objection is sustained.
Plaintiff argues that the surveillance video is material evidence to his claim and that he has attested to its relevancy in an affidavit. Additionally, he argues Defendant's response is insufficient because she failed to explain why she cannot respond, why the information is not within her ability to obtain, and what attempts were made to acquire the information.
Plaintiff has not filed an affidavit with this motion. Therefore, it is unclear from Plaintiff's response how any of the requested entities' or individuals' access to the prison's video surveillance is relevant to his claims regarding inmate mail. Defendant's objection is sustained.
Plaintiff argues that the telephone recordings are material evidence to his claim and that he has attested to its relevancy in an affidavit. Additionally, he argues Defendant's response is insufficient because she failed to explain why she cannot respond, why the information is not within her ability to obtain, and what attempts were made to acquire the information.
As noted above, Plaintiff has not filed an affidavit with this motion. It is unclear from Plaintiff's response or the allegations of his Seventh Amended Complaint how the mere existence of recordings of his phone calls and Defendant's access to them are relevant to his due process claims regarding inmate mail. Defendant's objection is sustained.
Plaintiff argues Defendant's response is insufficient because she failed to explain why she cannot respond, why the information is not within her ability to obtain, and what attempts were made to acquire the information.
Plaintiff may properly seek for defendant to admit or deny "the genuineness of any described documents." Fed. R. Civ. P. 36(a)(1). While Defendant may fail to admit or deny a request for admission based on a lack of information, she must state that she "has made reasonable inquiry and that the information [she] knows or can readily obtain is insufficient to enable [her] to admit or deny." Fed. R. Civ. P. 36(a)(4). Defendant has failed to do so. Defendant must amend her response in accordance with Fed. R. Civ. P. 36(a).
Plaintiff seeks leave to serve thirty-six additional requests for admission and ten additional interrogatories on Defendant Gonzaga and leave to take the written deposition of Defendant Gonzaga, USP Atwater Mailroom Officials Marc Fisher, Robert Martinez, Derrick Capel, Joshua Lopez, Michael Bucio, and Ray Luke, his former appellate counsel Karen Lindholdt, and his former trial counsel Frank Cikutovich. Plaintiff argues that he did not learn until October 24, 2014 in Defendant's response to his interrogatories the names of the six individuals who could potentially be Defendants A and B. Additionally, he did not learn until November 20, 2014 information regarding new claims against Defendant Gonzaga and her credibility. Plaintiff contends that he diligently filed these requests on November 26, 2014 and December 2, 2014.
Defendant Gonzaga argues that Plaintiff has not demonstrated good cause or exercised diligence in completing discovery. Plaintiff waited over three months from the Court's scheduling order before serving discovery on Defendant. Further, Plaintiff has not explained how he has been diligent or the substance and necessity of the additional discovery.
Federal Rule of Civil Procedure 16(b)(4) allows the Court to modify its scheduling order for good cause. The "good cause" standard focuses primarily on the diligence of the party seeking the amendment. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992). "[C]arelessness is not compatible with a finding of diligence and offers no reason for a grant of relief." Id. "Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification." Id. The Court has wide discretion to extend time, Jenkins v. Commonwealth Land Title Ins. Co., 95 F.3d 791, 795 (9th Cir. 1996), provided a party demonstrate some justification for the issuance of the enlargement order. Fed. R. Civ. P. 6(b)(1); Ginett v. Fed. Express Corp., 166 F.3d 1213 at 5* (6th Cir. 1998).
Plaintiff has not identified what new claims or issues need to be explored against Defendant Gonzaga or why taking her written deposition is necessary. Likewise, he has not provided any reason to take the depositions of his previous trial and appellate counsel. Therefore, Plaintiff has not shown good cause for an extension of time to depose any of these individuals.
On the other hand, Plaintiff's written depositions of the named USP Atwater mailroom officials may assist him in identifying Defendants A and B. Plaintiff has also shown reasonable diligence in requesting the information. According to Plaintiff, he did not learn of the new information regarding potential identities of Defendants A and B until October 24, 2014. Plaintiff states that he attempted to contact Defendant Gonzaga numerous times at the end of October and in November 2014 regarding his requests with no response. Additionally, the Court did not rule on Plaintiff's first request for extension of the discovery deadline, which was unopposed by Defendant Gonzaga, until October 30, 2014. The Court denied the motion without prejudice because Plaintiff did not explain why discovery should be extended. For all these reasons, Plaintiff will be granted
In light of the Court's ruling on the written depositions of the mailroom officials, Plaintiff's request to serve additional interrogatories and requests for admissions on Defendant Gonzaga regarding these officials would be cumulative and is therefore denied. To the extent that any of Plaintiff's proposed additional interrogatories and requests for admissions go to his claims against Defendant Gonzaga, he has not articulated why the information could not have been requested and obtained by the initial discovery deadline of November 30, 2014. Additionally, the proposed interrogatories and requests, appear to be duplicative of those already propounded on Defendant Gonzaga. Therefore, Plaintiff's motions to propound these additional interrogatories and requests on Defendant Gonzaga are denied. (ECF Nos. 85, 86, & 93.)
Plaintiff cites to Fed. R. Civ. P. 56(a) and argues that he is entitled to "judgment on the pleadings" as to one of his claims against Defendant Gonzaga based on his affidavits, documents, and other evidence. Defendant Gonzaga argues that Plaintiff appears to be confusing a partial motion for summary judgment under Fed. R. Civ. P. 56(a) with a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c) and that Plaintiff has failed to provide any evidence or materials to support his request.
Plaintiff has not articulated any evidence or facts to support his motion. If Plaintiff wishes to file a motion for summary judgment, he must demonstrate "that there is no genuine dispute as to any material fact" and that he is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). He should follow the procedures outlined in Fed. R. Civ. P. 56 to support his motion. Plaintiff's motion for judgment (ECF No. 116.) is denied without prejudice.
It appears that Plaintiff is seeking reconsideration of this Court's order finding only his Fifth Amendment claim against Defendants Gonzaga, A, and B cognizable. (ECF No. 71.) Plaintiff previously filed objections to this Court's order and a motion for reconsideration, both of which were previously denied. (ECF Nos. 75 & 79.) Plaintiff has provided no basis for granting a motion for reconsideration. It remains the conclusion of the Court that Plaintiff has not stated claims against Defendants Capel or Silva or stated a cognizable claim under the Federal Tort Claims Act.
Accordingly, for the reasons stated, it is HEREBY ORDERED that:
IT IS SO ORDERED.
