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Simon v. Murphy

United States District Court, Ninth Circuit

October 24, 2013

DERRICK M. SIMON, Plaintiff,
ROBIN MURPHY, et al., Defendants.


MARY ALICE THEILER, Chief Magistrate Judge.

Plaintiff Derrick M. Simon proceeds pro se and in forma pauperis (IFP) in this civil rights matter pursuant to 42 U.S.C. ยง 1983. Having reviewed several pending motions in this matter, the Court herein ORDERS as follows:

(1) Plaintiff seeks an extension of time to conduct discovery. (Dkt. 54.) Defendants object to that request and seek a stay of discovery pending a ruling on their motion for summary judgment. (Dkt. 58.) Having considered those requests, the Court finds additional information necessary.

By Order dated July 23, 2013, the Court set a discovery cutoff date of September 20, 2013 and a dispositive motion filing deadline of October 21, 2013. (Dkt. 48.) In arguing in favor of an extension of discovery, plaintiff refers generally to his "[s]everal sets of interrogatories and requests for production of documents along with requests for admissions[, ]" and alleges he has "encountered resistance, obfuscation, and delay" in response. (Dkt. 54 at 1.) However, plaintiff does not submit any supporting documentation or sufficient detail as to any outstanding discovery requests. Nor, as defendants observe, has plaintiff filed a motion to compel, or certified to the Court that he conferred or attempted to confer with defendants regarding any such outstanding discovery requests, as would be required before filing a motion to compel. Local Civil Rule (LCR) 37(a); Fed.R.Civ.P. 37(a)(1). In addition, while plaintiff also seeks an extension to allow new counsel for defendants "time to negotiate a settlement" (Dkt. 54 at 2), counsel for defendants denies any need for an extension, noting that plaintiff's settlement offer has been rejected. (Dkt. 58-1.)

On the other hand, while making the arguments described above, defendants do not address whether or not they responded to all timely submitted discovery requests. Defendants further fail to explain why they seek a stay of discovery despite the fact that, at the time they filed their motion for a stay, the discovery deadline had passed. While there may be no basis for additional discovery in this matter, the Court finds defendants' response and motion to raise questions requiring resolution prior to any ruling on the pending discovery-related motions. Accordingly, defendants are herein ORDERED to respond to the questions raised within ten (10) days of the date of this Order, and the motion for an extension of time (Dkt. 54) and the motion to stay discovery (Dkt. 58) are RENOTED for consideration as of November 8, 2013.

(2) Plaintiff recently filed a cross-motion for summary judgment (Dkt. 59), but failed to assign a noting date within the caption of the motion, as required by LCR 7(b)(1). Plaintiff is again reminded ( see Dkt. 55) that all motions must include a noting date that complies with LCR 7(d). Pursuant to LCR 7(d)(7), plaintiff's cross-motion would have been properly noted for consideration on November 15, 2013. However, given the pending discovery-related motions, the Court concludes that plaintiff's cross-motion should be set for consideration at a later date. Accordingly, plaintiff's cross-motion for summary judgment (Dkt. 59) is herein NOTED for consideration on December 6, 2013, and defendants' pending motion for summary judgment (Dkt. 56) is RENOTED for consideration as of that same date. The parties are directed to submit any outstanding briefing associated with those motions in accordance with LCR 7(d)(3) ("Any opposition papers shall be filed and served not later than the Monday before the noting date. If service is by mail, the opposition papers shall be mailed not later than the Friday proceeding the noting date. Any reply papers shall be filed and served no later than the noting date.")

(3) The Clerk is directed to send this Order to plaintiff, defendants, and to the Honorable James L. Robart.

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