Hendon v. Baroya et al
ORDER Denying Motion To Reopen Discovery, Without Prejudice (Doc. 161 ), signed by Magistrate Judge Gary S. Austin on 3/31/2015. (Fahrney, E)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ORDER DENYING MOTION TO REOPEN
DISCOVERY, WITHOUT PREJUDICE
DR. NORMA REIDMAN,
DR. JERRY Q. HOPPE,
DR. I. BAROYA,
DR. LUONG PHAM, and
DR. DAM NGUYET,
Carlos Hendon ("Plaintiff") is a state prisoner proceeding pro se with this civil rights
action under 42 U.S.C. § 1983. The parties to this action have consented to Magistrate Judge
jurisdiction pursuant to 28 U.S.C. ' 636(c) and on March 20, 2015, the case was reassigned to
the undersigned to conduct any and all proceedings in the case, including trial and entry of final
telephonic status hearing to be held before the undersigned, Magistrate Judge Gary S. Austin,
on April 13, 2015, at 10:30 a.m.
(Docs. 4, 155, 158.) This case is scheduled for trial on July 7, 2015, with a
On March 27, 2015, Plaintiff filed a motion to reopen discovery, which is now before
the court. (Doc. 161.) Plaintiff asserts that some of his legal materials, including documents
obtained during discovery, were taken from him by prison officials after discovery was closed.
Plaintiff argues that the only way for him to recover the documents is to reopen discovery.
Plaintiff contends that he will be unable to submit his trial exhibits by the trial date.
The deadline to conduct discovery in this case expired on August 1, 2012, and the
deadline has not been extended. (Doc. 88.) To reopen discovery at this juncture would require
modification of the court’s Scheduling Order.
Modification of the court’s Scheduling Order requires a showing of good cause, Fed. R.
Civ. P. 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party
seeking the modification of a scheduling order must generally show that even with the exercise
of due diligence, he or she cannot meet the requirement of the order. Id. If the party seeking to
amend the scheduling order fails to show due diligence, the inquiry should end and the court
should not grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d
1080, 1087 (9th Cir. 2002). The court may also consider the prejudice to other parties.
The court finds that Plaintiff used due diligence in completing discovery before the
court’s discovery deadline expired.
proceedings, on the eve of trial, would likely prejudice Defendants who are anticipating and
preparing for trial. This case was filed nearly ten years ago and should not be delayed any
longer than necessary. Therefore, Plaintiff’s motion shall be denied, without prejudice to
renewal of the motion at a later stage of the proceedings.
However, reopening discovery at this stage of the
Accordingly, Plaintiff’s motion to reopen discovery, filed on March 27, 2015, is
DENIED, without prejudice.
IT IS SO ORDERED.
March 31, 2015
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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