Quiroz v. California Department of Corrections and Rehabilitation, et al
ORDER Denying Plaintiff's 97 Motion for Leave to take Trial Deposition of Plaintiff signed by Magistrate Judge Dennis L. Beck on 01/26/2012. (Flores, E)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CASE NO. 1:06-CV-01426-AWI-DLB PC
ORDER DENYING PLAINTIFF’S MOTION
FOR LEAVE TO TAKE TRIAL DEPOSITION
DOCTOR SHEN, et al.,
Plaintiff Carlos Quiroz (“Plaintiff”) was formerly in the custody of the California
Department of Corrections and Rehabilitation (“CDCR”). This action is proceeding against
Defendants Shen and Attygalla for deliberate indifference in violation of the Eighth Amendment.
Pending before the Court is Plaintiff’s motion for leave to take trial deposition of Plaintiff, filed
January 25, 2012. Doc. 97. On January 26, 2012, Defendants filed their opposition. Because of
the urgent nature of the motion, the Court will issue its order without waiting for Plaintiff to file
Plaintiff contends that he is currently being held in federal immigration detention waiting
removal to Peru. Pl.’s Mot. 1-2. Plaintiff may thus be removed prior to the March 6, 2012 trial.
Id. Plaintiff contends that a second deposition is necessary to preserve Plaintiff’s testimony. Id.
Plaintiff suggests a date of February 2, 2012 to conduct the deposition, given the imminent nature
of such removal. Id.
Defendants contend that leave should not be granted because 1) discovery is closed, 2)
Plaintiff’s deposition was already taken and the transcript can be used at trial if necessary, 3)
Plaintiff’s request is not timely, and 4) granting leave is prejudicial to Defendants. Defs.’ Opp’n
Having considered the parties’ arguments, the Court finds that leave for a second
deposition of Plaintiff should not be granted. The decision to modify a scheduling order is
within the broad discretion of the district court. Johnson v. Mammoth Recreations, Inc., 975
F.2d 604, 607 (9th Cir. 1992) (quoting Miller v. Safeco Title Ins. Co., 758 F.2d 364, 369 (9th Cir.
1985)). Pursuant to Federal Rule of Civil Procedure 16, a pretrial scheduling order “shall not be
modified except upon a showing of good cause,” and leave of court. Fed. R. Civ. P. 16(b)(4);
Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087-88 (9th Cir. 2002). Although “the existence
or degree of prejudice to the party opposing the modification might supply additional reasons to
deny a motion, the focus of the inquiry is upon the moving party’s reasons for seeking
modification.” Johnson, 975 F.2d at 609.
The Court does not find good cause exists to modify the schedule. Defendants are correct
that discovery is closed. Plaintiff has already been deposed regarding this action, and such
deposition can be used at trial. Fed. R. Civ. P. 32. To allow a deposition at this time would also
unfairly prejudice Defendants, as the deposition would need to occur within eight days after the
filing of the motion.
Accordingly, it is HEREBY ORDERED that Plaintiff’s motion for leave to trial
deposition of Plaintiff, filed January 25, 2012, is denied.
IT IS SO ORDERED.
January 26, 2012
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?