Avery v. Director of CDCR, et al.

Filing 113

ORDER Granting Defendants' Motion to Modify the Scheduling Order 105 ; ORDER Extending Dispositive Motions Deadline for All Parties to this Action, signed by Magistrate Judge Gary S. Austin on 11/7/12. New Dispositive Motions Deadline: 2/28/2013. (Gonzalez, R)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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SHANNON LEWIS AVERY, SR.,

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Plaintiff,

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vs.

1:07-cv-01175-LJO-GSA-PC
ORDER GRANTING DEFENDANTS’
MOTION TO MODIFY THE SCHEDULING
ORDER
(Doc. 105.)

CDCR DIRECTOR, et al.,

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Defendants.

ORDER EXTENDING DISPOSITIVE
MOTIONS DEADLINE FOR ALL PARTIES
TO THIS ACTION

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New Dispositive Motions Deadline: 02/28/2013
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_____________________________/

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I.

BACKGROUND

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Plaintiff is a former state prisoner proceeding pro se in this civil rights action pursuant to

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42 U.S.C. § 1983. On August 29, 2012, Defendants requested an extension of the deadline to file

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pretrial dispositive motions in this action. (Doc. 105.) Plaintiff has not filed an opposition.

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II.

MOTION TO MODIFY SCHEDULING ORDER

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Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 16(b),

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and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, Inc., 975

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F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the modification of a

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scheduling order must generally show that even with the exercise of due diligence, they cannot

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meet the requirement of the order. Id. The court may also consider the prejudice to the party

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opposing the modification. Id. If the party seeking to amend the scheduling order fails to show

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due diligence the inquiry should end and the court should not grant the motion to modify. Zivkovic

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v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002).

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Defendants request an extension of the dispositive motions deadline of September 7, 2012,

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established by the Court's Discovery/Scheduling Order of October 27, 2011, to allow time for the

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resolution of Defendants’ two pending motions to compel, filed on April 13, 2012 and June 25,

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2012, and Defendants’ pending motion to dismiss, filed on August 2, 2012. Defendants contend

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that the Court’s decision on any one or all of these motions will necessarily impact their decision

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whether to file a motion for summary judgment in this action.

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The Court finds that Defendants have shown due diligence in attempting to file their

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dispositive motions by the September 7, 2012 deadline established by the Court's Scheduling

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Order. Therefore, good cause appearing, Defendants’ motion to modify the Scheduling Order shall

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be granted.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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2012, is GRANTED;
2.

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Defendants’ motion to modify the Court's Scheduling Order, filed on August 29,

The NEW DEADLINE for the parties to file pretrial dispositive motions is February
28, 2013; and

3.

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All other provisions of the Court's October 27, 2011 Scheduling Order remain the
same.

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IT IS SO ORDERED.
Dated:
6i0kij

November 7, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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