Palmer v. Woodford et al

Filing 137

ORDER GRANTING 135 Defendants' Motion to Modify Dispositive Motion Deadline signed by Magistrate Judge Barbara A. McAuliffe on 12/4/2013. Dispositive Motions due within thirty (30) days. (Jessen, A)

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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 DISPOSITIVE MOTION DEADLINE
(ECF No. 135)

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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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On December 27, 2011, the Court issued a Discovery and Scheduling Order, which set the

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deadline for completion of discovery as August 27, 2012, and the dispositive motion deadline as

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November 5, 2012. (ECF No. 81.) On September 13, 2013, the Court granted Defendants’ motion to

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modify the Discovery and Scheduling Order, allowing Defendants to depose Plaintiff within thirty

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days and to file and serve their dispositive motion within sixty days. (ECF No. 124.)

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Currently pending before the Court is Defendants’ motion to modify the dispositive motion

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deadline, which was filed on November 18, 2013. (ECF No. 135.) The Court finds a response

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unnecessary and the matter is deemed submitted. Local Rule 230(l).

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II.

Discussion

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A. Legal Standard

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Pursuant to Rule 16(b), a scheduling order “may be modified only for good cause and with the

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

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diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

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609 (9th Cir. 1992). The district court may modify the scheduling order “if it cannot reasonably be

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met despite the diligence of the party seeking the extension.” Id. If the party was not diligent, the

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inquiry should end. Id.

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B. Analysis

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Defendants explain that following the Court’s September 13, 2013 order modifying the

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Discovery and Scheduling to allow for completion of Plaintiff’s deposition within thirty days and the

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filing of dispositive motions within sixty days, Defendants scheduled Plaintiff’s video deposition for

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October 10, 2013. Plaintiff’s deposition proceeded for approximately five hours, but could not be

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completed because correctional staff at CSP-Lancaster, where Plaintiff had transferred, advised that

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Plaintiff was required to return to his cell. (ECF No. 135-1; Declaration of Ellen Y. Hung (“Hung

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Dec.”) ¶ 6.) The parties agreed that they would reconvene to complete the deposition at a later date.

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Due to the limited number of mutually available dates and equipment, Defendants did not complete

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Plaintiff’s deposition until November 8, 2013. (Hung Dec. ¶ 7.) Based on the unexpected delay in

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completing the deposition, Defendants and their counsel now seek additional time to prepare and file

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their motion for summary judgment. (Hung Dec. ¶ 8.) Defendants further explain that their counsel

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was out of the office for portions of the weeks of November 4 and November 13, 2013, because of

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medical issues under the Family Medical Leave Act. (Hung ¶ 9.)

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Based on the foregoing and the declaration of defense counsel, the Court finds that the relevant

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dispositive motion could not be met despite Defendants’ diligence in completing Plaintiff’s deposition.

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Further, allowing the parties additional time to file any dispositive motions will promote judicial

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economy and efficiency by potentially resolving or narrowing any issues for trial.

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III.

Conclusion and Order

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For the reasons stated, Defendants’ motion to extend the dispositive motion deadline is

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GRANTED. The parties shall file and serve any dispositive motions within thirty days following

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service of this order.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

December 4, 2013

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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