Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. ValueOptions, Inc., Defendants. Shannon Michael Clark, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) No. CV 03-1344-PHX-EHC (MS) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Pending before the Court are Plaintiff's "Motion Requesting Order to Supplement its Responses to Plaintiff's Request for Production of Documents" (Doc. # 138), "Motion to Strike Defendant ValueOptions, Inc.'s Motion for Summary Judgment & Statement of Facts" (Doc. # 150), "Motion to Strike Defendant ValueOptions' Response and Opposition to Plaintiff's Motion to Reopen Discovery" (Doc. # 151), "Motion for Issuance of Subpoenas and Order of Service of Subpoenas" (Doc. # 152), Defendant ValueOptions' responses (Docs. # 144, 145), and Plaintiff's replies thereto (Docs. # 149, 153). The Court will address each motion in turn. 1. Motion Requesting Order to Supplement Defendant's Responses to Requests for Production of Documents Plaintiff requests this Court to order Defendant ValueOptions to supplement its responses to Plaintiff's request for production of documents because, as Plaintiff argues, its responses are "insufficient, inaccurate and need supplementation." See
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Motion Requesting Order (Doc. # 138). Defendant responds that Plaintiff has not complied with FED. R. CIV. P. 37(a)(2), requiring Plaintiff to certify that he has made a good faith attempt to resolve this dispute. Defendant argues in the alternative that it has fully complied with its obligations in responding to Plaintiff's discovery request, as ordered by the Court in its August 17, 2004 minute entry. FED. R. CIV. P. 37(a)(2) requires a party "to include a certification that the movant has in good faith conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action." Plaintiff has not included a certification that he has attempted to resolve this dispute directly with Defendant, nor is there any evidence that he has. Additionally, Plaintiff's request is outside the boundary of this Court's August 17, 2004 minute entry in which the Court ordered production of specific materials readily within Defendant's possession. Finally, Plaintiff makes his request over one year after this Court's specific order, without providing any justification for why such an untimely request should be granted. As a result, Plaintiff's request will be denied. 2. Motion to Strike Defendant ValueOptions, Inc.'s Motion for Summary Judgment & Statement of Facts Plaintiff requests that this Court strike Defendant's Motion for Summary Judgment and Statement of Facts "as improperly filed in violation of Fed. R. Civ. P. and Local Rules prohibiting ex parte communication." See Motion to Strike (Doc. # 150). Plaintiff argues that because he did not receive copies of Defendant's Motion for Summary Judgment and Statement of Facts, that constitutes ex parte communication. Defendants respond that the copies of the filings were mistakenly sent to Plaintiff's prior address, and have since mailed copies to Plaintiff's current address. Plaintiff's argument is without merit. Both the Motion for Summary Judgment and the Statement of Facts were filed as part of a public record, thereby eliminating the possibility that the communication was ex parte. The communication was not -2-

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private, and the Plaintiff was given notice of the filing, as evidenced by his receipt of the deficiency (for Defendant's failure to select the appropriate document type). Finally, Plaintiff has not been prejudiced by Defendant's error. Plaintiff has been given until November 30, 2005 to respond to Defendant's Motion for Summary Judgment. See Order filed October 28, 2005 (Doc. # 158). Accordingly, Plaintiff's Motion to Strike will be denied. 3. Motion to Strike Defendant ValueOptions' Response and Opposition to Plaintiff's Motion to Reopen Discovery Plaintiff's Motion to Reopen Discovery (Doc. # 133) was denied by this Court on October 27, 2005. See Order filed October 27, 2005 (Doc. # 157). As a result, Plaintiff's Motion to Strike Defendant's Response will be denied as moot. 4. Motion for Issuance of Subpoenas and Order for Service of Subpoenas Plaintiff requests this Court to issue six subpoenas for the production of documents to the following individuals/entities: (1) Maricopa County Superior Court, (2) U.S. District Court, (3) Arizona Republic Newspaper, (4) KNXV-TV-Channel 15ABC, (5) Governor Janet Napolitano, and (6) Arizona Department of Public Safety. The Court will deny Plaintiff's request for subpoena to the United States District Court for failure to provide a subpoena for issuance. The documents sought by Plaintiff are public records and are available for viewing to the extent that any exist. Plaintiff is not entitled to copies of such documents without cost to him by virtue of his in forma pauperis status. Plaintiff's request for subpoenas to the other entities will be granted. As the subpoenas do not contain a time or date for production of the requested documents, the Clerk shall construe the subpoenas as requiring production within a reasonable time. It is noted, however, that in ordering service of the subpoenas, the Court does not make a determination beyond the fact that service is authorized at Government

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expense. Accordingly, Plaintiff's Motion for Issuance of Subpoenas will be granted to the extent contained herein. In light of the foregoing, IT IS ORDERED THAT Plaintiff's "Motion Requesting Order to Supplement its Responses to Plaintiff's Request for Production of Documents" (Doc. # 138) is DENIED, IT IS FURTHER ORDERED THAT Plaintiff's "Motion to Strike Defendant ValueOptions, Inc.'s Motion for Summary Judgment & Statement of Facts" (Doc. # 150) is DENIED, IT IS FURTHER ORDERED THAT "Motion to Strike Defendant ValueOptions' Response and Opposition to Plaintiff's Motion to Reopen Discovery" (Doc. # 151) is DENIED as moot, IT IS FURTHER ORDERED THAT "Motion for Issuance of Subpoenas and Order of Service of Subpoenas" (Doc. # 152) is GRANTED to the extent contained herein. The Clerk is directed to issue the subpoenas with respect to the specific documents in the care, custody, and control of the (1) Maricopa County Superior Court, (2) Arizona Republic Newspaper, (3) KNXV-TV-Channel 15-ABC, (4) Governor Janet Napolitano, and (5) Arizona Department of Public Safety. IT IS FURTHER ORDERED THAT the U.S. Marshal for the District of Arizona or his authorized deputies serve the individuals and/or entities named in the subpoenas, at Government expense.

DATED this 1st day of November, 2005.

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