Strong v. Elliot

Filing 39

ORDER granting 38 Motion to modify the scheduling order signed by Magistrate Judge Jennifer L. Thurston on 10/31/2011. (Lundstrom, T)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT FOR THE

9

EASTERN DISTRICT OF CALIFORNIA

10
11

GEORGE B. STRONG,

12

Plaintiff,

13
14

1:09-cv-00583-AWI-JLT (PC)
ORDER GRANTING DEFENDANT'S
MOTION TO MODIFY THE
SCHEDULING ORDER

vs.
KENNETH ELLIOT,

15

Defendants.

16

(Doc. 38)

________________________________/

17

Before the Court is Defendant’s motion to amend the scheduling order to extend the

18

October 23, 2011, discovery deadline to October 30, 2011. For the reasons discussed below, the

19

Court will GRANT the motion.

20

I. Background

21

On October 20, 2011, defendant filed a motion to modify the Court’s February 23, 2011

22

scheduling order to extend the October 23, 2011, discovery deadline for seven days to October

23

30, 2011. (Doc. 38). Defendant assert that this extension is necessary to allow defendant to

24

depose Plaintiff, scheduled to be completed on October 28, 2011. (Id. at 1). Defendant states

25

that he has been unable to complete the deposition due to a dispute regarding the deposition’s

26

location which has since been resolved. (Id. at 3).

27

///

28
1

1

II. Analysis

2

Pursuant to Fed. R. Civ. P. 16(b)(3), a case schedule may be modified only for good

3

cause and only with the judge’s consent. Fed. R. Civ. P. 16(b). In Johnson v. Mammoth

4

Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992), the Court explained,

5

. . . Rule 16(b)’s “good cause” standard primarily concerns the diligence of the
party seeking the amendment. The district court may modify the pretrial schedule
“if it cannot reasonably be met despite the diligence of the party seeking the
extension.” Fed.R.Civ.P. 16 advisory committee’s notes (1983 amendment) . .
.[T]he focus of the inquiry is upon the moving party’s reasons for seeking
modification. . . . If that party was not diligent, the inquiry should end.

6
7
8
9

Parties must “diligently attempt to adhere to that schedule throughout the subsequent

10

course of the litigation.” Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. Cal. 1999); see

11

Marcum v. Zimmer, 163 F.R.D. 250, 254 (S.D. W.Va. 1995). In part, the “good cause” standard

12

requires the parties to demonstrate that “noncompliance with a Rule 16 deadline occurred or will

13

occur, notwithstanding her diligent efforts to comply . . .” Jackson, 186 F.R.D. at 608, emphasis

14

added.

15

Here, Defendant asserts that delay in accomplishing the deposition occurred as a result of

16

a dispute regarding the location of the deposition. (Doc. 38 at 3). In August 2011, Plaintiff filed

17

a motion to compel Defendant to pay for the expense of Plaintiff’s appearance at his deposition

18

in Sacramento as Plaintiff resides in Victorville, California and stated that he could not afford the

19

costs of travel to complete his deposition. (Doc. 31 at 2). On September 8, 2011, the Court

20

ordered that Plaintiff’s deposition be taken in Bakersfield, California and additionally ordered

21

Defendant to secure a location for the deposition in Bakersfield. (Doc. 36).

22

In the instant motion, Defendant explains that delays due to scheduling conflicts as well

23

as Plaintiff’s need to obtain permission from his parole officer for travel to Bakersfield have

24

prevented the timely completion of the deposition. Additionally, Plaintiff has filed no objection

25

to his deposition being taken out of time.

26

///

27

///

28
2

1
2

Accordingly, good cause appearing, it is HEREBY ORDERED that Defendant’s October
20, 2011 motion is GRANTED.

3
4

IT IS SO ORDERED.

5

Dated: October 31, 2011
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3