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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MORRIS GREEN,

Plaintiff,

v.

CITY AND COUNTY OF SAN 

FRANCISCO, et al.,

Defendants.

Case No. 17-cv-00607-TSH 

ORDER RE: MOTION TO RE-OPEN 

DISCOVERY

Re: Dkt. No. 77

I. INTRODUCTION

Plaintiff Morris Green was a Junior Engineer with Defendant City and County of San 

Francisco’s Public Utilities Commission (the “City”) until his medical separation in February of 

2018. Green filed the present lawsuit on February 6, 2017, alleging racial discrimination, 

retaliation, harassment, and a failure by the City to provide for his medical accommodation 

requests. Green filed this case pro se, but the Court appointed counsel on April 17, 2018, after the 

Federal Pro Bono Project was able to locate counsel to represent him. The original fact discovery 

cut off was February 20, 2018. Since that date, there have been several extensions. Green now 

moves to reopen discovery. ECF No. 77.

II. BACKGROUND

A. Procedural Background

According to the Case Management Order for this case, discovery was initially set to 

conclude on February 20, 2018. Case Mgmt. Scheduling Order, ECF No. 27. However, on 

February 15, 2018, the City requested the fact discovery cut-off be extended by four months. Mot. 

to Change Deadlines at 2, ECF No. 42. Green opposed the motion for a variety of reasons,

including that prolonging the litigation – when he did not have representation and was 

unemployed due to being terminated by the City – “would place a tremendous toil on the 

Plaintiff’s overall mental, emotional and physical health including his finances.” Opp’n to Mot. to 
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United States District Court

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Change Deadlines, ECF No. 45 at 2. The Court found the City had not established good cause for 

modifying pre-trial deadlines and directed the City to file a declaration establishing good cause for 

its request. Order re: Mot. to Change Deadlines at 2, ECF No. 46. 

On March 12, 2018, after the City filed its declaration – arguing that the Green’s failure to 

provide his medical records and agree to a Protective Order caused a delay — the Court “found 

that, by and large, Defendant had not been diligent and had not shown good cause to extend 

pretrial deadlines.” Order re: Discovery Deadlines, ECF No. 53 at 1. Despite that, the Court

partially granted the City’s request to modify the pre-trial deadlines but directed the City to review 

its discovery responses in good faith and to determine whether any of them should be

supplemented. Id. The Court, taking into account that Green had complied with all discovery

obligations and met all deadlines, gave him additional time to review the City’s responses and to 

seek assistance from the Court, if necessary, in order to compel further responses from the City. 

Id. at 2. The following day, the Court referred Green to the Federal Pro Bono Project to determine 

if counsel could be located to assist him in this matter. ECF No. 54. On April 17, 2018, after the 

Pro Bono Project located counsel for Green, the Court appointed counsel to assist him with 

discovery and any settlement conference that might take place. ECF No. 57. 

Two months later, the Court granted the parties’ stipulation to extend the discovery 

deadline an additional 30 days to conduct a meet and confer conference pursuant to the Court’s 

March 12, 2018 discovery order. ECF No. 59. Soon after, the Court granted the parties’ 

stipulation to extend the deadline to file discovery disputes from July 23, 2018, to August 2, 2018. 

ECF No. 63. The Court also set a Case Management Conference for August 9, 2018 and ordered 

the parties to file an updated joint statement seven days prior. ECF No. 60.

On August 2, 2018, the parties filed a Joint Case Management Statement, in which Green 

indicated he had outstanding discovery disputes. ECF No. 64. Specifically, Green noted in his 

statement that he was considering a motion to compel in regards to ongoing discovery disputes 

with the City “for their inability or unwilling[ness] to ‘provide substantive responses’ and 

documentation to the Plaintiff’s discovery requests . . .” and for producing more than 8100 pages 

of new documents in “mid April 2018” which was “passed the discovery cut-off deadline.” Id. at 
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5. 

In response, the Court vacated the August 9, 2018 Case Management Conference and 

upcoming pretrial and trial dates pending resolution of all outstanding discovery disputes. ECF 

Nos. 65, 66. Later that day, the parties filed seven joint letter briefs, detailing their ongoing 

discovery disputes. ECF No. 67. On August 6, 2018, the Court ordered the parties to meet and 

confer in person at the courthouse to resolve their disputes, after which the parties were to submit 

an updated joint letter brief, as well as a joint proposal for a new discovery deadline. ECF No. 69. 

On August 24, 2018 the parties filed an updated joint letter brief. In it Green requested permission 

to take additional discovery, his request in that letter mirroring his request in the current pending 

motion. ECF No. 70. 

The Court held a status conference on September 20, 2018. ECF No. 73. At the hearing 

the City opposed reopening discovery. Also at the hearing, Green noted that he was waiting for a 

Right to Sue letter from the Department of Justice and that once he received it, he would be 

seeking to amend his complaint. The City agreed that additional discovery would be appropriate 

if an amended complaint was filed but only as to new claims. Initially, based on oral argument, 

the Court denied Green’s request to reopen discovery but noted that he would be allowed to 

conduct discovery as to any new claims in the amended complaint. ECF No. 74. 

On November 15, 2018 Green filed a status report stating he had received his Right to Sue 

letter and that an amended complaint would be forthcoming. ECF No. 82. Upon Green’s counsel 

refiling the request to reopen discovery and further briefing the issue, the Court has reconsidered 

and GRANTS Green’s Motion to Reopen Discovery. 

III. LEGAL STANDARD

Federal Rule of Civil Procedure 16 provides that deadlines established in a case 

management order may “be modified only for good cause[.]” Fed. R. Civ. P. 16(b)(4). “Good 

cause” exists when a deadline “cannot reasonably be met despite the diligence of the party seeking 

the extension.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Thus, 

“Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking the 

amendment.” Id.; see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). 
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Where the moving party has not been diligent, the inquiry ends, and the motion should be 

denied. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002); Johnson, 975 F.2d at 

609.

IV. DISCUSSION

In the instant case, the Court is persuaded that Green has established good cause to reopen 

discovery. There is no indication that Green — who until April 17, 2018 was acting pro se — has 

been dilatory in conducting discovery. Despite the City’s arguments to the contrary, the Court 

finds that Green navigated the discovery process diligently. He timely served the City with RFPs, 

Special Interrogatories, and Requests for Admission. Decl. of Emily A. Weirder at 1-2, ECF No. 

77-1. 

During the discovery period, despite his efforts, Green was not always successful in getting 

the City to be completely responsive in its filings. “In many circumstances, a pro se litigant’s 

good faith unsuccessful efforts to obtain discovery meet the standard of good cause.” Lawrence v. 

City and County of San Francisco, 2016 WL 3254232, *3 (N.D. Cal. June 14, 2016) (citing 

Henderson v. Peterson, 2011 WL 441206, at *2 (N.D. Cal. Feb. 3, 2011)) (finding good cause 

after counsel’s appointment where “Plaintiff’s pro se status” demonstrated “that he was unable to 

gain access to evidence and information that he might otherwise have obtained had he been 

represented by counsel”). His lack of success is evidenced by the fact that in March of 2018, upon 

the direction of the Court to review its previous filings in good faith and make any necessary 

amendments, the City served amended responses to supplement its previous responses to Green’s 

Interrogatories and Requests for Admission and made an additional document production.

Defendant’s Status report, ECF No. 56 at 2; Decl. of Joseph M. Lake Ex. D, ECF No. 79-4 at 2-3. 

This was over a month after the original fact discovery cut off.

In fact, Magistrate Judge Maria-Elena James1noted in the Court’s March Order granting 

the City’s first request to extend discovery that Green, “who is representing himself in this action . 

. . has complied with his discovery obligations and met all deadlines,” whereas the City was 

 

1 Magistrate Judge James retired on August 31, 2018, after which this case was reassigned to the 

undersigned. ECF No. 71.
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admonished for not being diligent and not having shown good cause for requesting pretrial 

deadlines be extended. Order Re: Discovery Deadlines at 2. 

Regardless, in the interests of justice and in order to resolve the case on the merits, when 

the City requested an extension, the Court granted it. In the months that followed, the Court 

granted multiple extensions, for both parties, including the following: 1) allowing the City to 

depose Green five months after discovery cut off; 2) granting Green an additional 30 days to 

review the City’s discovery responses after discovery cut off, ECF No. 53; 3) extending the 

already previously extended deadlines in its March 12, 2018 Order by an additional 30 days, ECF 

No. 59; 4) extending the deadline to file Joint Letter Briefs regarding discovery disputes to August 

2, 2018, ECF No. 63; and 5) extending the dispositive motions deadline to allow parties time to 

resolve their discovery disputes ECF No. 69. Since Green was appointed counsel, extensions have 

been a necessary vehicle for allowing his counsel to get up to speed. 

The Court finds that the additional information Green’s counsel now seeks to obtain is 

relevant and proportional in accordance with Federal Rule of Civil Procedure 26(b)(1), and the 

information sought will aid in trial preparation and in the resolution of this case on the merits.

Specifically, Green proposes to reopen discovery to conduct the following:

 He proposes conducting a deposition of the City’s Person Most 

Knowledgeable on topics including, but not limited to, Green’s 

transfer to the Collection Systems Division; the City’s policy and 

practices regarding reasonable accommodation requests and requests 

for transfer; Green’s reasonable accommodation requests and 

requests for transfer; and training and development opportunities 

provided to Green and Junior Engineers within Wastewater 

Enterprise. Green intends to conduct this deposition within 60 days 

of service of the second set of written discovery. 

 Green intends to conduct no more than three depositions of 

individuals involved in his transfer to the Collections Systems 

Division and/or the City’s decision to deny his reasonable 

accommodation request. He intends to conduct this deposition 

within 60 days of service of the second set of written discovery. 

 Green seeks to serve one limited second set of Requests for 

Admission, Requests for Production of Documents, and Special 

Interrogatories. He seeks to serve this set of written discovery 

within one week of the Court’s Order granting his request to re-open 

discovery.
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Mot. to Reopen Discovery at 2. 

The City will not be inappropriately prejudiced by a reopening of discovery. There is no 

pretrial conference or trial date currently set in this matter, so those dates will not be impacted by 

the reopening of discovery. Calloway v. Scribner, No. 1:05-CV-01284-BAM PC, 2014 WL 

1317608, at *4 (E.D. Cal. Mar. 27, 2014) (finding that defendants would not be prejudiced by the 

reopening of discovery where a trial date had not been set and defendants would “be afforded 

sufficient time to respond to any permitted discovery”). Also, “any prejudice suffered by 

Defendant in this regard is substantially outweighed by Plaintiff’s need to engage in discovery to 

adequately prepare for trial.” Woodard v. City of Menlo Park, No. C 09-3331 SBA, 2012 WL 

2119278, at *1-2 (N.D. Cal. June 11, 2012) (reopening discovery after the appointment of pro 

bono counsel). 

Finally, since Green has indicated that he will be filing an amended complaint now that he 

has received a Right to Sue letter from the Department of Justice, discovery will have to reopen

anyway as to the new claims. 

V. CONCLUSION

Green’s motion to reopen discovery is GRANTED. He may take the additional discovery 

proposed in his motion and described above in this order. Fact discovery on Green’s existing 

claims shall close on March 29, 2019. If Green files an amended complaint the Court will address 

at that time reopening discovery as to any new claims.

IT IS SO ORDERED.

Dated: November 27, 2018

THOMAS S. HIXSON

United States Magistrate Judge