Fearence v. Schulteis et al

Filing 94

ORDER Granting Defendants' 93 Motion to Modify the Scheduling Order; ORDER Extending Dispositive Motions Deadline for All Parties to this Action, signed by Magistrate Judge Gary S. Austin on 3/20/15. Dispositive Motions Deadline: 3/30/2015. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAQUES FEARENCE,

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Plaintiff,

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vs.

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Defendants.

ORDER GRANTING DEFENDANTS’
MOTION TO MODIFY THE SCHEDULING
ORDER
(Doc. 93.)

L. L. SHULTEIS, et al.,

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1:08-cv-00615-LJO-GSA-PC

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ORDER EXTENDING DISPOSITIVE
MOTIONS DEADLINE FOR ALL PARTIES
TO THIS ACTION
New dispositive motions deadline:
March 30, 2015

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I.

BACKGROUND

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Jaques Fearence (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on

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May 1, 2008. (Doc. 1.) This case now proceeds on the Third Amended Complaint filed on

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November 22, 2013, against defendants Hopkins and Busby for use of excessive force; against

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defendants Hopkins, Davis, Duffy, and Beckett for failure to protect Plaintiff; and against

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defendants Hopkins, Busby, Davis, Duffy, and Beckett for conspiracy to use excessive force

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(collectively, “Defendants”). (Doc. 64.)

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On March 19, 2015, Defendants filed a motion to modify the court’s scheduling order

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for this action, to extend the deadline for the parties to file pretrial dispositive motions. (Doc.

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93.)

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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.

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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).

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Defendants request a ten-day extension of the March 19, 2015 dispositive motions

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deadline established by the court’s amended scheduling order of May 8, 2014. (Doc. 85.)

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Defendants assert that the parties have engaged in settlement discussions in the last several

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months and had agreed to set this case for mediation. (Delgado Decl., Doc. 93-1 ¶¶4, 5.)

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Defendants held off preparing their motion for summary judgment in the belief that this case

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would be set for a settlement conference this Spring, and that the proceedings would be stayed

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in the interim. Recently, the parties’ settlement positions changed, and the parties called off the

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pending settlement conference. (Id. ¶6.) Defendants provide evidence that they spoke to

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Plaintiff, and Plaintiff does not oppose Defendants’ motion. (Id.) Based on the foregoing,

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Defendants seek an extension of the deadline to file dispositive motions.

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The Court finds good cause to extend the dispositive motions deadline in this action for

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all parties until March 30, 2015. Thus, Defendants’ motion to modify the court’s scheduling

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order shall be granted.

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III.

CONCLUSION
Accordingly, good cause having been presented to the court and GOOD CAUSE

APPEARING THEREFOR, IT IS HEREBY ORDERED that:
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Defendants’ motion to modify the court's scheduling order, filed on March 19,
2015, is GRANTED;

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The deadline for the filing and serving of pretrial dispositive motions is

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extended from March 19, 2015 to March 30, 2015 for all parties to this action;

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and

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3.

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All other provisions of the court's May 8, 2014 amended scheduling order
remain the same.

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IT IS SO ORDERED.
Dated:

March 20, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE