Washington v. Andrews et al

Filing 119

ORDER GRANTING 116 118 Cross-Motions to Extend Time for Pretrial Filings and AMENDING Second Scheduling Order signed by Magistrate Judge Michael J. Seng on 1/3/2013. Telephonic Trial Confirmation Hearing set for 2/4/2013 at 03:00 PM in Courtroom 2 (AWI) before District Judge Anthony W. Ishii; Jury Trial set for 3/26/2013 at 08:30 AM in Courtroom 2 (AWI) before District Judge Anthony W. Ishii. (Sant Agata, S)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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JESSE WASHINGTON,

CASE No. 1:07-cv-00886-AWI-MJS (PC)
ORDER GRANTING CROSS-MOTIONS
TO EXTEND TIME FOR PRETRIAL
FILINGS AND AMENDING SECOND
SCHEDULING ORDER

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Plaintiff,
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vs.
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(ECF Nos. 88, 116, 118)
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J.W. ANDREWS, et al.,
Telephonic Trial Confirmation
Hearing:
February 4, 2013

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Defendants.

Jury Trial:

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March 26, 2013

_____________________________/
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I.

PROCEDURAL HISTORY

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Plaintiff Jesse Washington is a California state prisoner proceeding pro se and
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in forma pauperis in this civil rights action filed June 21, 2007 pursuant to 42 U.S.C. §
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1983. (Compl., ECF No. 1.) The parties have declined Magistrate Judge jurisdiction.
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(Decline Juris., ECF Nos. 86-87, 90.)
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This case is proceeding on Plaintiff’s claim that Defendants destroyed his
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personal property, were indifferent to his medical needs, denied him access to court
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and retaliated against him. The Court has filed scheduling orders under which
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Plaintiff’s pretrial statement and incarcerated witness motion(s) are due December 24,

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2012; Defendants’ pretrial statement and opposition to incarcerated witness motion(s)

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are due January 7, 2013; telephonic trial confirmation hearing is set for January 14,

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2013; and jury trial is set for February 26, 2013. (Second Sch. Order, ECF No. 88, 5:6-

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24.)

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On December 26, 2012, Plaintiff filed an ex parte motion to extend time to file

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his pretrial statement and incarcerated witness motion(s) from the current December

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24, 2012 to January 6, 2013. (Pl. Mot. Ext. Time, ECF No. 116.)

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On January 2, 2013, Defendants filed a motion to extend time to file their

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pretrial statement and opposition to Planitiff’s incarcerated witness motion(s) from the

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current January 7, 2013 to January 28, 2013. (Defs. Mot. Ext. Time, ECF No. 118.)

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These motions are now before the Court.

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II.

LEGAL STANDARD

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A scheduling order “may be modified only for good cause and with the judge’s

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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’ . . . ‘carelessness is not compatible with

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a finding of diligence and offers no reason for a grant of relief.’ ” C.F. v. Capistrano

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Unified School Dist., 656 F.Supp.2d 1190, 1194 (C.D. Cal. 2009). In determining good

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cause under Rule 16, a court considers four factors: (1) the explanation for the failure

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to timely move for relief; (2) the importance of the relief sought; (3) potential prejudice

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in allowing the relief; and (4) the availability of a continuance to cure such prejudice.’”

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(Id. at 1196.)

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Good cause to modify a scheduling order requires the party demonstrate that,

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despite diligence, the proposed relief could not have been reasonably sought in a

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timely manner. Venetec Inter., Inc., v. Nexus Medical, LLC, 541 F.Supp.2d 612, 618

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(D. Del. 2008).

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“Although the existence or degree of prejudice to the party opposing the

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modification might supply additional reasons to deny a motion, the focus of the inquiry

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is upon the moving party's reasons for seeking modification. Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992), citing Gestetner Corp. v. Case

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Equip. Co., 108 F.R.D. 138, 141 (D.Me. 1985). “If that party was not diligent, the

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inquiry should end.” Johnson, 975 F.2d at 609.

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III.

ARGUMENT

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A.

Plaintiff’s Argument

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Plaintiff asserts that a recent transfer deprived him of his legal files and access

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to the law library and prevented timely preparation and filing of his pretrial statement

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and motion in support of four inmate material witnesses.
He seeks an extension of time for filing his pretrial statement and incarcerated

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witness motion(s) from the current December 24, 2012 date to January 6, 2013, on

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grounds of excusable neglect. (Mot. Ext. Time at 1:27-2:10.)

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B.

Defendants’ Argument

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Defendants assert that, if Planitiff’s motion is granted, they will have insufficient

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time to prepare and file their pretrial statement and incarcerated witness motion

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opposition by the current January 7, 2013 deadline. (Def. Mot. Ext. Time at 1:22-25.)
Additionally, Defendants’ counsel asserts he will be in trial and unavailable from

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January 14-17, 2013. (Id. at 1:26-27.)
For these reasons, Defendants request the time to file their pretrial statement

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and opposition to Planitiff’s incarcerated witness motion(s) be extended from the

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current January 7, 2013 to January 28, 2013. (Id. at 2:1-3.)

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IV.

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ANALYSIS
The parties’ cross-motions shall be granted upon the terms and conditions

herein for good cause shown under the Rule 16 standard.

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Plaintiff’s allegations of transfer and deprivation of legal property and access to

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the law library demonstrate good cause for relief. The Court finds that Plaintiff has

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been reasonably diligent in seeking the requested relief.
Defendants likewise show good cause for consequent extension of their

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deadline to file pretrial statement and opposition to incarcerated witness motion(s).

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The Court finds any potential prejudice to be cured through the continued dates

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provided herein.
Such relief necessitates extension of the telephonic trial confirmation hearing

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and trial dates in order to accommodate the Court’s case management needs and
provide parties with sufficient time for pretrial motions and trial preparation.

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V.

ORDER

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Accordingly, for the foregoing reasons, it is ORDERED that Plaintiff’s ex parte

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motion for extension of time to file his pretrial statement and incarcerated witness

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motion(s) (ECF No. 116), and Defendants’ motion for extension of time to file their

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pretrial statement and opposition to incarcerated witness motion(s) are GRANTED

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such that the Second Scheduling Order shall be amended as follows:1
1.

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This matter is set for telephonic trial confirmation hearing before the

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Honorable Anthony W. Ishii on February 4, 2013, at 3:00 p.m. in

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Courtroom 2;
2.

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This matter is set for jury trial before the Honorable Anthony W. Ishii on
March 26, 2013, at 8:30 a.m. in Courtroom 2;

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3.

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Plaintiff shall serve and file a pre-trial statement as described in the
Second Scheduling Order on or before January 14, 2013;

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4.

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Defendant shall serve and file a pre-trial statement as described in the
Second Scheduling Order on or before January 28, 2013;

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In all other regards the Second Scheduling Order shall remain in full force and effect.

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5.

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If Plaintiff intends to call incarcerated witnesses at time of trial, Plaintiff

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shall serve and file a motion for attendance of incarcerated witnesses as

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described in the Second Scheduling Order on or before January 14,

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2013;
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The opposition to the motion for the attendance of incarcerated
witnesses, if any, shall be filed on or before January 28, 2013; and

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7.

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If Plaintiff wishes to obtain the attendance of unincarcerated witnesses

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who refuse to testify voluntarily, Plaintiff must submit the money orders,

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as described in subsection 4 of the Second Scheduling Order, to the
Court on or before February 4, 2013.

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IT IS SO ORDERED.

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Dated:
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January 3, 2013

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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