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Lepley v. Nevada, 2:16-cv-02848-RFB-DJA. (2019)

Court: District Court, D. Nevada Number: infdco20190830c31 Visitors: 8
Filed: Aug. 29, 2019
Latest Update: Aug. 29, 2019
Summary: ORDER DANIEL J. ALBREGTS , Magistrate Judge . This matter is before the Court on Plaintiff's Motion for Trial before Magistrate Judge (ECF No. 61), filed on July 15, 2019. Defendant Joseph Dugan filed a Response (ECF No. 62) on July 26, 2019. Plaintiff requests that the parties agree to consent to trial by a magistrate judge and use of the Short Trial Program. Defendant opposes Plaintiff's request. Both parties must consent pursuant to 28 U.S.C. 636(c) so Plaintiff's Motion is denied with
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ORDER

This matter is before the Court on Plaintiff's Motion for Trial before Magistrate Judge (ECF No. 61), filed on July 15, 2019. Defendant Joseph Dugan filed a Response (ECF No. 62) on July 26, 2019. Plaintiff requests that the parties agree to consent to trial by a magistrate judge and use of the Short Trial Program. Defendant opposes Plaintiff's request. Both parties must consent pursuant to 28 U.S.C. § 636(c) so Plaintiff's Motion is denied without prejudice. He may meet and confer with Defendant on this issue and if all parties consent, they should utilize the "AO 85 Notice of Availability, Consent, and Order of Reference — Exercise of Jurisdiction by a U.S. Magistrate Judge" form on the Court's website — www.nvd.uscourts.gov — and manually file the form with the Clerk's Office.

This matter is also before the Court on Plaintiff's Motion to Compel (ECF No. 65) filed on August 13, 2019, Motion to Compel (ECF No. 66) filed on August 20, 2019, Motion to Waive Defendant's Response (ECF No. 67) filed on August 27, 2019, and Motion for Scheduling Order (ECF No. 68). Preliminarily, neither of Plaintiff's Motions to Compel (ECF Nos. 65-66) complies with Local Rule IA 1-3(f) or 26-7(c) because they lack any good faith effort to meet and confer and declaration setting forth the details and results of the meet and confer. Further, in his Motion to Compel (ECF No. 65), Plaintiff requests that the Office of the Attorney General respond to the Court's Order ECF No. 58, which directed the Clerk of the Court to electronically serve a copy of its order and a copy of Plaintiff's first amended complaint (ECF No. 41) on the Office of the Attorney General. However, the Court's Order ECF No. 58 specified that such action did not indicate acceptance of service. Specifically, the Court indicated that service "must be perfected within ninety (90) days from the date of this order" and the Attorney General's Office shall file a notice advising the Court any Defendants for which it was accepted service and any Defendants for which is could not accept service. (ECF No. 58). The Office of the Attorney General complied with the Court's Order by filing Acceptance of Service (ECF No. 63), which accepted service for Defendant Joseph Dugan only on July 31, 2019. Accordingly, Defendants High Desert State Prison and Doctor Wilson are the only remaining defendants that the Attorney General's Office did not accept service. Therefore, Plaintiff's Motion to Compel (ECF No. 65) is denied.

As to Plaintiff's Motion to Compel (ECF No. 66), he seeks to compel Defendants to respond to his complaint. However, Defendant Joseph Dugan is the only defendant who has appeared by accepting service on July 31, 2019 so his response to Plaintiff's complaint is not yet due. Similarly, Plaintiff's Motion to Waive Defendant's Response (ECF No. 67) is also premature as the time has expired for Defendant Joseph Dugan to respond to the complaint and service has not been perfected on the other two remaining defendants. Therefore, Plaintiff's Motion to Compel (ECF No. 66) and Motion to Waive Defendant's Response (ECF No. 67) are denied.

Finally, Plaintiff requests for a discovery plan and scheduling order to be issued (ECF No. 68), but this request is premature. Local Rule 26-1 provides for the parties to conduct a Federal Rule of Civil Procedure 26(f) meeting within 30 days after the first defendant answers or otherwise appears and file a stipulated discovery plan and scheduling order within 14 days after the conference. Neither of these two dates have occurred and therefore, the Court will deny Plaintiff's Motion for Scheduling Order (ECF No. 68).

IT IS THEREFORE ORDERED that Plaintiff's Motion for Trial before Magistrate Judge (ECF No. 61) is denied without prejudice.

IT IS FURTHER ORDERED that Plaintiff's Motion to Compel (ECF No. 65) is denied.

IT IS FURTHER ORDERED that Plaintiff's Motion to Compel (ECF No. 66) is denied.

IT IS FURTHER ORDERED that Plaintiff's Motion to Waive Defendant's Response (ECF No. 67) is denied.

IT IS FURTHER ORDERED that Plaintiff's Motion for Scheduling Order (ECF No. 68) is denied.

Source:  Leagle

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