Morgan v. Tilton et al

Filing 80

ORDER GRANTING Defendant's 79 Motion to Modify Scheduling Order; New Dispositive Motions Deadline for All Parties: November 4, 2013 signed by Magistrate Judge Gary S. Austin on 8/30/2013. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KELLY MORGAN,

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1:08-cv-00233-LJO-GSA-PC

Plaintiff,

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ORDER GRANTING DEFENDANT’S
MOTION TO MODIFY SCHEDULING
ORDER
(Doc. 79.)

vs.

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JAMES TILTON, et al.,

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Defendants.

New Dispositive Motions Deadline,
For All Parties:

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November 4, 2013

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I.

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BACKGROUND
Kelly Morgan (APlaintiff@) is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. ' 1983.

Plaintiff filed the Complaint commencing this action on

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February 15, 2008.

This case now proceeds on Plaintiff=s Third Amended

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Complaint, filed on July 28, 2011, against defendant Correctional Officer (C/O) M. Hernandez

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(ADefendant@) for retaliation and obstruction of mail, in violation of the First Amendment. 1

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(Doc. 45.)

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///

(Doc. 1.)

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All remaining claims and defendants were dismissed from this action by the Court on October 17, 2011,
based on Plaintiff=s failure to state a claim. (Doc. 52.)
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On August 29, 2013, Defendant filed a motion to modify the Scheduling Order for this

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action. (Doc. 79.)

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III.

MOTION TO MODIFY SCHEDULING ORDER

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Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P.

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16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations,

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Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the

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modification of a scheduling order must generally show that even with the exercise of due

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diligence, they cannot meet the requirement of the order. Id. The court may also consider the

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prejudice to the party opposing the modification. Id. If the party seeking to amend the

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scheduling order fails to show due diligence the inquiry should end and the court should not

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grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087

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(9th Cir. 2002). A party may obtain relief from the court=s deadline date for discovery by

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demonstrating good cause for allowing further discovery. Fed. R. Civ. P. 16(b)(4).

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Defendant requests an extension of the September 5, 2013 deadline in the Court's

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Scheduling Order for the parties to file pretrial dispositive motions. Defendant argues that the

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deadline should be extended because Defendant’s motion to compel, filed on March 18, 2013,

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is pending, and Defendant has not received responses to his discovery requests from Plaintiff.

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Moreover, new defense counsel was recently assigned to this case on August 15, 2013, and

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additional time is needed to conduct a full review of the pleadings, rulings, and discovery, and

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to prepare a motion for summary judgment.

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Defendant has shown good cause for the court to modify the Scheduling Order to

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extend the deadline for the parties to file pretrial dispositive motions. Therefore, Defendant’s

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motion shall be granted.

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IV.

CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Defendant’s motion to modify the Court's Scheduling Order is GRANTED;

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2.

The deadline for serving and filing pre-trial dispositive motions, is extended to

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November 4, 2013; and
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3.

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All other provisions of the Court's Scheduling Order of October 26, 2012,
remain the same.

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IT IS SO ORDERED.
Dated:

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August 30, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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