Opinion
No. CIV S-06-1563 WBS DAD.
March 6, 2008
ORDER
Defendants have filed a motion to compel answers to interrogatories complaining that all plaintiffs responded to the interrogatories "with identical, meritless objections to each interrogatory and no responsive information whatever." Defendants' set their motion to compel for hearing before the undersigned on March 28, 2008.
The Status (Pretrial Scheduling) Order issued by the assigned district judge on February 6, 2007 includes the following relevant provisions:
All discovery, including depositions for preservation of testimony, is left open, save and except that it shall be so conducted as to be completed by January 22, 2008. The word "completed" means that all discovery shall have been conducted so that all depositions have been taken and any disputes relevant to discovery shall have been resolved by appropriate order if necessary and, where discovery has been ordered, the order has been obeyed. All motions to compel discovery must be noticed on the magistrate judge's calendar in accordance with the local rules of this court and so that such motions may be heard (and any resulting orders obeyed) not later than January 22, 2008.
. . . .
Any requests to modify the dates or terms of this Scheduling Order, except requests to change the dates of the final Pretrial Conference or trial, may be heard and decided by the assigned Magistrate Judge.
(Status (Pretrial Scheduling) Order filed Feb. 6, 2007, at 3 5 (emphasis in original).)
Defendants' motion to compel answers to interrogatories was not "noticed on the magistrate judge's calendar in accordance with the local rules of this court and so that such motion may be heard (and any resulting orders obeyed) not later than January 22, 2008." To cure this defect, defendants have included in their discovery motion a request that the undersigned modify the February 6, 2007 Status (Pretrial Scheduling) Order to allow defendants to bring their discovery motion and have it heard after the discovery cut-off date.
Defendants' request to modify the Scheduling Order is made pursuant to Federal Rule of Civil Procedure 16(b) and is also grounded on the provision of the Scheduling Order that authorizes the assigned magistrate judge to decide any requests to modify the dates or terms of the Scheduling Order, other than requests to change the Pretrial Conference and trial dates. Defendants assert that good cause exists to modify the Scheduling Order because "Turbomeca has been diligent in conducting discovery and propounded contention interrogatories to be answered just before the end of the discovery period when the information, if any, supporting plaintiffs' contentions would be fully developed." (Defs.' Mot. to Compel filed Mar. 4, 2008, at 1.) Defendants assert further that "Plaintiffs' refusal to answer the interrogatories, apparently based on the assumption that Turbomeca would have insufficient time to bring a motion to compel challenging that refusal, should not be countenanced." (Id.) Defendants' request to modify the Scheduling Order is not supported by declarations or briefing.
The docket reveals that on February 29, 2008, defendants filed a separate motion to modify the Scheduling Order. That motion, however, is set for hearing before the assigned district judge on March 31, 2008, and seeks a 60-day continuance of the dates set for Pretrial Conference and trial, as well as new dates for initial and rebuttal expert disclosure and completion of expert depositions. Defendants assert that there is "good cause for a short extension because, despite the diligence of the parties in completing discovery by the January 22, 2008 discovery cut-off, there is insufficient time for the parties to prepare for the Pretrial Conference on June 30, 2008 and trial beginning on August 12, 2008, including the completion of expert disclosure and depositions, determination of dispositive motions, and designation [of] videotaped deposition testimony." (Defs.' Mot. to Modify Scheduling Order filed Feb. 29, 2008, at 2.) Law and motion cut-off is currently set for March 31, 2008.
Discovery closed in this case on January 22, 2008, pursuant to the operative Scheduling Order. No discovery motion may be filed unless and until discovery has been reopened. Accordingly, defendants' motion to compel will be denied without prejudice. If defendants choose to file a motion to re-open discovery, the motion must demonstrate good cause to re-open discovery and for defendants' decision to serve their first set of interrogatories on a date that made plaintiffs' responses due on the discovery cut-off date, in contravention of the order requiring the parties to conduct discovery so that any disputes "shall have been resolved by appropriate order if necessary and, where discovery has been ordered, the order has been obeyed" by January 22, 2008. The undersigned will not entertain a motion to re-open discovery prior to the district judge's disposition of defendants' February 29, 2008 motion to modify the Scheduling Order with regard to Pretrial Conference and trial.
Defendants indicate that their first set of interrogatories was "dated December 20, 2007." (Defs.' Mot. to Compel Answers filed Mar. 4, 2008, at 2.) If the set of interrogatories was served on December 20, 2007, the 30-day period for responding, plus 3 days for service, ended on January 22, 2008, the discovery cut-off date.
IT IS ORDERED that defendants' March 4, 2008 motion to compel answers to interrogatories is denied without prejudice, and the motion is dropped from the court's calendar.