Aery v. Nohre

Background

James Paul Aery, representing himself, filed two motions: a motion to modify the pretrial scheduling order and a motion for an order compelling discovery. Defendants opposed both motions. The court noted that the motions did not appear to have been sent to Defendants and that Aery had not shown that he met and conferred with Defendants’ counsel before filing them, as required by the scheduling order and local rules.

The court reminded Aery that representing himself did not excuse compliance with court rules, laws, or court orders. It warned that future noncompliance could result in sanctions, including dismissal of the case. The court also explained that permission to proceed without paying filing fees did not require the court to pay litigation or discovery expenses.

Motion to Modify the Scheduling Order

Aery asked for a 30-day extension of the July 1, 2022 deadline for motions to amend the pleadings or add parties. He said he did not have a copy of the complaint and that Defendants were taking 30 days or more to respond in writing to discovery requests. Defendants argued that Aery had not shown the good cause required to modify a scheduling order and had not explained the effect of the proposed change on other deadlines.

The court found good cause for an extension because of the limitations and challenges Aery faced in obtaining a copy of the complaint while incarcerated. It granted Aery’s motion. Motions to amend the pleadings or add parties had to be filed and served by September 2, 2022. The court stated that all other deadlines remained in effect.

The court also explained that any future proposed amended complaint must be a complete replacement pleading, identify each defendant and the capacity in which the defendant is sued, describe the relevant facts, explain what each defendant allegedly did or failed to do, and state the requested relief. It further required compliance with the local rule concerning a proposed amended pleading and a version showing the changes from the existing pleading.

Motion to Compel Discovery

Aery asked the court to require Defendants to cooperate with his discovery requests. He complained about some of Defendants’ responses but did not identify the particular requests in dispute. The court noted that a motion to compel discovery must include a good-faith meet-and-confer certification and must identify the disputed discovery, provide the relevant requests and responses, explain why the responses are insufficient or improper, and state the remedy sought.

Because Aery did not identify or attach the specific discovery requests, Defendants’ responses, or the alleged deficiencies, and because the record did not show a good-faith discussion with Defendants’ counsel, the court stated that it was left to guess about the dispute. It denied without prejudice Aery’s motion for an order compelling discovery. The court declined to award Defendants their expenses under the discovery rule at that time, concluding that doing so would be unjust given Aery’s self-represented status and the circumstances. The final order stated that each party would bear its own costs and attorney fees.

Disposition

The motion to modify the scheduling order was granted. The motion for an order compelling discovery was denied without prejudice. Judge Tony N. Leung reminded the parties that prior consistent orders remained in effect and warned that violations could lead to appropriate remedies or sanctions.