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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

MICHELLE M., DONALD M., SR.,

and DONALD M., JR., by and

through his guardian ad litem,

DONALD M., Sr.,

NO. 2:04-cv-2411-MCE-PAN (JFM)

Plaintiffs,

v. ORDER

DUNSMUIR JOINT UNION SCHOOL

DISTRICT, ROBERT MORRIS, 

individually, CHRISTOPHER

RAINE, individually, ANTHONY

PAGANINI, individually, PAULA

SCHMITT, individually, and

DOES 1 through 15, inclusive, 

Defendants.

----oo0oo----

Presently before the Court is Defendants’ Motion for Summary

Judgment, or in the alternative, Summary Adjudication, filed on

April 21, 2006. 

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In opposition to that Motion, Plaintiffs contend that Defendants

failed to comply with the express terms of Magistrate Judge John

Moulds’ Order dated March 15, 2006 on Plaintiffs’ Motion to

Compel Production of Documents. That Order granted Plaintiffs’

Motion to Compel in part, stating as follows:

“By noon Friday, March 24, 2006, defendants shall make

available, for copying and inspection, all documents ordered

produced herein...”

(March 15, 2006 Order, 9:18-19).

There is no dispute that Defendants have not complied with

the terms of Judge Moulds’ Order, which requires that certain

documents be produced in response to Plaintiffs’ document

production request nos. 13, 19, 20, 30, 36 and 61. Nor is there

any dispute that the parties agreed, in advance of the Motion to

Compel, that certain additional documents would be produced;

namely, documents responsive to request nos. 89, 9, 13, 14, 17,

24, 39, 45. 47, 57 and 58.

In what appears to be an astonishingly misguided

interpretation of Judge Moulds’ Order, counsel for Defendants

assert that because Plaintiffs failed to make arrangements to

copy the documents at issue on March 24, 2006, any attempt to do

so after that date was “too late”. In his letter dated April 6,

2006, attorney Kelley states:

“I complied with this order and informed you well in advance

that the documents would be available all day on March 24,

2006. You did not come and inspect the documents, you did

not ask for an earlier date, you did not send a copy service

to copy the documents.”

(Ex. “G” to Decl. of Larry Schapiro, p. 1).

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Defendants accordingly take the position that because Defendants

literally failed to make arrangements to copy the documents on

the first day they had to be made available, any subsequent

effort to do so was untimely.

This tortured reading of Judge Moulds’ Order is patently

untenable. All the Order says is that the documents had to be

made available by Defendants by March 24, 2006; it does not

specify any date certain after which Plaintiffs had to avail

themselves of the opportunity to obtain copies. On March 20,

2006, just five days after Judge Moulds’ Order was issued,

counsel for Plaintiffs faxed a message to Plaintiffs’ attorney

requesting that he be furnished a copy of the documents at issue,

at his expense. (Schapiro Decl., Ex. “C”). It was not until

March 24, 2006, the only day on which Defendants assert that

Plaintiffs could copy the documents, that counsel for Plaintiffs

informed Plaintiff that he would have to make his own

arrangements to copy the documents. (Id. at Exs. “B”, “D”). 

According to Plaintiffs’ counsel, he could not engage a copy

service for that same day. Defense counsel rebuffed his

subsequent attempts to do so as stated above, and, incredibly,

makes the following disingenuous statement:

“While Plaintiffs’ counsel offers excuses why he did not

show up to inspect the documents or hire a copy service,

they are just that, excuses. The fact remains Judge Moulds’

order was complied with. End of story.”

(Reply, 2:7-9). 

Despite attorney Kelley’s overbearing pronouncement that he 

has dictated the “end of the story” in this matter, there will in

fact be several more chapters of this tale to be written and

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read. The sharp litigation practices evidenced by attorney

Kelley’s conduct will simply not be tolerated or condoned by this

Court. Defendants have clearly failed to abide by the

unequivocal terms of Judge Moulds’ March 15, 2006 order, not to

mention their express agreement to produce documents beforehand.

Counsel are warned that continuing to engage in conduct of this

nature will subject the offending party to sanctions by this

court

In opposition to Defendants’ Motion for Summary Judgment,

filed less than a month after Defendants were supposed to have

produced the above-described documents, Plaintiffs contend that

they cannot properly prepare a response in the absence of said

documents. (Opposition, 4:21-23; 5:5-7). The Declaration of

Larry Schapiro further describes the documents and reiterates the

fact that they are imperative in formulating an adequate

opposition to Defendants’ Motion. (Schapiro Decl., ¶¶ 2, 3, 8).

Pursuant to Federal Rule of Civil Procedure 56(f), if an

opposing party’s declarations show he or she “cannot for reasons

stated present by affidavit facts essential to justify the

party’s opposition,” the court may order a continuance to permit

additional discovery or make such other order as may be just. 

This prevents the opposing party from being “railroaded” by a

premature motion for summary judgment. Celotex Corp. v. Catrett,

477 U.S. 317 (1986).

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Although the Court’s Pretrial (Status) Scheduling Order of

May 10, 2005 required that dispositive motions be heard by May

26, 2006, just four days after the date on which Defendants’

Motion for Summary Judgment was initially scheduled (before being

continued at the Court’s own behest to June 5, 2006), Plaintiffs

have demonstrated good cause as to why the motion should not be

entertained in advance of Defendants’ production of documents as

enumerated above. Contrary to Defendants’ assertion, the express

language of Rule 56(f) permits a continuance to be ordered

premised on declarations alone. A formal motion for continuance

under Rule 56(f) is not required.

Defense counsel is hereby ordered to produce all the

documents identified in Judge Moulds’ March 15, 2006 Order not

later than June 9, 2006. In addition, all documents which

Defendants had agreed to produce, as set forth above, must also

be produced by June 9, 2006. Given the circumstances, the Court

orders that copies will be furnished to Plaintiffs’ counsel, at

the expense of Defendants.

In order to accommodate this compliance with the Court’s

discovery orders, the hearing on Defendants’ Motion for Summary

Judgment, or in the Alternative for Summary Adjudication, will be

continued from June 9, 2006 to August 21, 2006. Supplemental

opposition and reply, if any, may be submitted in advance of the

new August 21, 2006 hearing date in accordance with the

provisions of Local Rule 78-230 (c) and (d). The Final Pretrial

Conference will be reset to October 23, 2006 at 3:30 p.m.

//

//

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The parties’ Joint Pretrial Statement shall be filed by

October 10, 2006. The jury trial in this matter will commence on

December 13, 2006. The previously scheduled Final Pretrial

Conference date of August 28, 2006 is vacated, as is the jury

trial of October 11, 2006. 

IT IS SO ORDERED.

DATED: June 5, 2006

_____________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

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