Palmer v. Woodford et al

Filing 124

ORDER GRANTING Defendants' 123 Motion to Modify Discovery and Scheduling Order signed by Magistrate Judge Barbara A. McAuliffe on 9/13/2013. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILL MOSES PALMER, III,

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Plaintiff,

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v.

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JORDNT, et al.,

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Defendants.

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Case No.: 1:06-cv-00512-LJO-BAM PC
ORDER GRANTING DEFENDANTS’ MOTION
TO MODIFY DISCOVERY AND SCHEDULING
ORDER
(ECF No. 123)

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I.

Introduction

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Plaintiff Will Moses Palmer, III (“Plaintiff”) is a state prisoner proceeding se and in forma

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pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on

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April 28, 2006. (ECF No. 1.) This action now proceeds on Plaintiff’s second amended complaint

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against Defendants Jordnt and Bardonnex for retaliation and denial of access to the courts. (ECF Nos.

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111, 112, 122.)

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Currently pending before the Court is Defendants’ motion to modify the discovery and

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scheduling order, which was filed on August 14, 2013. Plaintiff did not file any opposition or other

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response. The motion is deemed submitted. Local Rule 230(l).

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II.

Discussion

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Defendants Jordnt and Bardonnex, proceeding through counsel from the Office of the Attorney

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General, answered the first amended complaint on December 22, 2011. (ECF No. 80.) Thereafter, the
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Court issued a Discovery and Scheduling Order, which set the deadline for completion of discovery as

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August 27, 2012, and the dispositive motion deadline as November 5, 2012. (ECF No. 81.)

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Subsequently, Plaintiff sought leave to file a second amended complaint, which the Court

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granted on June 8, 2012. Following screening, on January 7, 2013, the Court directed the United

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States Marshal to serve the second amended complaint on Defendant Lopez. (ECF No. 118.) On May

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16, 2013, the United States Marshal returned the summons unexecuted as to Defendant Lopez. (ECF

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No. 119.) Accordingly, on May 20, 2013, the Court issued an order for Plaintiff to show cause why

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Defendant Lopez should not be dismissed from this action for failure to provide sufficient information

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to effectuate service. (ECF No. 120.) Plaintiff did not respond to the order to show cause. The

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undersigned issued findings and recommendations regarding dismissal of Defendant Lopez on July 5,

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2013. (ECF No. 121.) Plaintiff did not file any objections to the findings and recommendations.

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Thereafter, on August 12, 2013, the Court adopted the findings and recommendations and dismissed

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Defendant Lopez from this action. (ECF No. 122.) Two days later, on August 14, 2013, Defendants

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Jordnt and Bardonnex filed the instant motion requesting modification of the Discovery and

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Scheduling Order to permit them to depose Plaintiff and to file their anticipated motion for summary

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judgment. (ECF No. 123.)
In seeking the requested modification, counsel for Defendants Jordnt and Bardonnex explains

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that when the Court ordered that the second amended complaint be served on Defendant Lopez, it was

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anticipated that all three of the defendants would be represented by the Office of the Attorney General.

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Counsel believed that judicial economy and efficiency would be promoted by conducting a single

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deposition of Plaintiff and filing a single motion for summary judgment that could resolve some or all

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of the issues in this case. (ECF No. 123-1, Declaration of Ellen Y. Hung (“Hung Dec.”) ¶¶ 4.)

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However, service was never effectuated on Defendant Lopez, and the Court dismissed Defendant

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Lopez from this action on August 12, 2013. Defendants Jordnt and Bardonnex now request that they

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be permitted to complete Plaintiff’s deposition within thirty days after resolution of this motion and to

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file a summary judgment motion within sixty days after resolution of this motion.

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A. Legal Standard

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Pursuant to Federal Rule of Civil Procedure 16(b), a scheduling order “may be modified only

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for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard

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“primarily considers the diligence of the party seeking the amendment.” Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). The district court may modify the scheduling

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order “if it cannot reasonably be met despite the diligence of the party seeking the extension.” Id.

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B. Analysis

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Based on Defendants’ explanation for delaying their deposition of Plaintiff and motion for

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summary judgment until service of Defendant Lopez, the Court finds good cause to modify the

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scheduling order in this matter. Defendants could not control the length of time for attempted service

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of Defendant Lopez and there is no indication that Defendants were not diligent in meeting all other

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discovery and scheduling order deadlines. Further, Plaintiff has not objected to the requested

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extension.

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III.

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For good cause appearing, Defendants’ motion to modify the discovery and scheduling order is

Conclusion and Order

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GRANTED. Defendants may depose Plaintiff within thirty (30) days after service of this order, and

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shall file and serve their motion for summary judgment within sixty (60) days after service of this

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order.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 13, 2013

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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