United States District Court, W.D. Washington, Tacoma
ORDER STAYING DISCOVERY
Theresa L. Fricke United States Magistrate Judge.
matter comes before the Court on plaintiff's motion for
extension of the discovery deadline. (Dkt. 23.)
February 28, 2019, the Court issued a pre-trial scheduling
order. (Dkt. 13.) The pre-trial scheduling order set a
discovery deadline of June 28, 2019, instructing parties that
“service of responses to interrogatories and to
requests to produce, and the taking of depositions, shall be
completed by this date.” Id. at 1. Further,
the order instructed that the serving party must serve
interrogatories at least thirty days before this deadline to
allow the other party thirty days to respond in compliance
with Federal Rule of Civil Procedure (FRCP) 33(a).
motion for extension of the discovery deadline, plaintiff
indicates that “[o]n May 28, 2019, exactly thirty days
before the deadline, plaintiff served a discovery request via
the U.S. mail.” (Dkt. 23 at 1.) Plaintiff further
indicates that defendants declined to respond to the requests
because defendants received the requests on June 3, 2019 and
therefore the responses would be due on July 3, 2019, after
the discovery cut-off date. (Dkt. 23 at 2, 9; See, Ex. B.)
Plaintiff informs the Court that these requests were sent in
a good faith effort to comply with the pre-trial scheduling
order and that plaintiff sincerely believed that he was in
compliance with the pre-trial scheduling order. (Dkt. 23 at
their opposition to plaintiff's motion for extension of
the discovery deadline, defendants state that they received
plaintiff's first set of interrogatories on May 21, 2019
which defendants objected to. (Dkt. 24 at 2.) Defendants also
indicate that they object to the requests for production that
defendants received on June 3, 2019. Id. Defendants
maintain that the requests for production in question were
untimely served. Id.
defendants assert that plaintiff was aware of the discovery
cut-off date, as evidenced by the fact that plaintiff
submitted timely interrogatories. Id. Defendants
argue that plaintiff has failed to explain why he needs until
September 28, 2019 to serve discovery and has failed to show
good cause for the extension pursuant to FRCP 6(b)(1).
Id. In the alternative, defendants request that the
Court stay discovery until defendants' motion to dismiss
is decided and the issue of qualified immunity is resolved.
objections that defendants have allegedly made to
plaintiff's discovery requests are not before the Court
in this motion and will not be considered in the Court's
to FRCP 5(a)(1)(C), unless the court orders otherwise, all
discovery paper must be served on the party subject to the
discovery requests. When a paper is served by mail, service
is completed upon mailing. FRCP 5(b)(2)(C). Further, in the
case of service by an incarcerated pro se litigant,
service under FRCP 5(b) occurs upon the submission of the
papers to prison authorities to mail to the party to be
served. Faile v. Upjohn Co., 988 F.2d 985, 988 (9th
Cir. 1993), disapproved on other grounds, McDowell v.
Calderon, 197 F.3d 1253 (9th Cir. 1999). This is because
in the case of service by an incarcerated pro se
litigant, the moment at which the litigant “necessarily
lose[s] control over and contact with their documents is at
delivery to prison authorities, not at deposit in the public
present case plaintiff states that he mailed the request for
production on May 28, 2019. (Dkt. 23 at 1, 6.) Although the
envelope attached in Exhibit A is post marked on May 30,
2019, plaintiff is an incarcerated pro se litigant
and therefore service was effective the day he submitted the
requests to be mailed -- not the date on which the
correctional facility actually mailed the requests. (Dkt. 23
this reason, plaintiff's requests for production were
timely served within the deadline established by the
pre-trial scheduling order. However, as defendants point out
in their letter to plaintiff, defendants did not receive the
requests until June 3, 2019, which gave them less than thirty
days to respond before the discovery deadline. (Dkt. 23 Ex.
B.) Accordingly, in compliance with FRCP 33(a) and to prevent
prejudice to any party, the Court GRANTS a thirty (30) day
extension for defendants to respond to plaintiff's
request for production.
their response opposing plaintiff's motion, defendants
request that if the Court grants plaintiff's motion, the
Court should also grant a stay of discovery until
defendants' motion to dismiss has been decided. (Dkt. 24
at 3.) When a defendant has raised a qualified immunity
defense the Courts should resolve this threshold matter
before permitting discovery. Crawford-El v. Britton,
523 U.S. 574, 598 (1998) (citing to Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “If the
plaintiff's action survives these initial hurdles and is
otherwise viable, the plaintiff ordinarily will be entitled
to some discovery.” Id. In the present case,
defendants have asserted qualified immunity as a defense to
plaintiff's action and have filed a motion to dismiss.
(Dkt. 12, 17.) Because plaintiff has already filed its reply
to defendants' motion to dismiss (Dkt. 20, ) neither
party would be prejudiced by a stay of discovery until
defendants' motion to dismiss is decided. Therefore, the
Court GRANTS a stay of discovery in this
matter until defendants' motion to dismiss is decided.
foregoing reasons, the Court hereby ORDERS:
is stayed in this action until defendants' motion to
dismiss is decided, and the issue of qualified immunity is
resolved. If plaintiff's action survives defendants'
motion to dismiss, defendants shall have thirty (30) days
from the entry of the order on ...