Zuniga v. Jordan et al

Filing 64

ORDER DENYING Plaintiff's 61 63 Motion to Vacate Trial; Plaintiff's Motions In Limines Due by June 15, 2012 signed by Chief Judge Anthony W. Ishii on 5/31/2012. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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LARRY ZUNIGA,

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CASE NO. 1:09-cv-01208-AWI-BAM PC
Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION TO
VACATE TRIAL

v.
(ECF No. 61, 63)

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CHRIS JORDAN, et al.,

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PLAINTIFF’S MOTION IN LIMINES DUE BY
JUNE 15, 2012

Defendants.
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Plaintiff Larry Zuniga (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. This matter is currently set for a motion in

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limine hearing on June 25, 2012, and jury trial on July 17, 2012. On May 11, 2012, Plaintiff filed

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a motion to vacate the trial date because he has been denied access to his property and is unable to

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prepare for trial. On May 17, 2012, Defendants filed an opposition to Plaintiff’s motion to vacate

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the trial date.

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Plaintiff requests that the jury trial set for July 17, 2012, be vacated because his property has

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was confiscated on April 24, 2012, and he does not have access to his legal work and addresses of

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family members who would assist him at trial. Plaintiff is set be released on June 16, 2012, and

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requests the July 17, 2012, trial be vacated so he can prepare for trial once he is released from

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custody.

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Defendants oppose Plaintiff’s motion on the grounds that they have already been prejudiced

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by the delay in this action, and since Plaintiff is set to be released on June 16, 2012, there is no need

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to vacate the trial date. Plaintiff has already received three extensions of the discovery and
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dispositive motion deadlines. Plaintiff was also granted a continuance of the trial date of February

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28, 2012, and the jury trial was set July 17, 2012 to accommodate his June 16, 2012 release date.

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In light of these extensions, Plaintiff has had ample time to prepare for trial and if he has not

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prepared for trial it is due to lack of diligence on his part. Defendants also argue they have already

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been prejudiced by the delay due to the problems inherent with the passage of time, such as locating

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witnesses and diminished recollection. Plaintiff will be released from custody approximately one

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month prior to trial, and he has failed to explain what he is unable to do to prepare for trial.

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Defendants request that the Court deny Plaintiff’s motion as they are entitled to their day in court.

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The Court considers four factors in deciding whether to grant a continuance of the trial date:

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1) the diligence of the party requesting the continuance in preparing for trial; 2) the likelihood that

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granting the continuance would meet the need for the continuance; 3) the extent that granting the

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continuance would inconvenience the court and opposing parties, including witnesses; and 4) the

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potential harm to the moving party if the continuance is denied. United States v. Flynt, 756 F.2d

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1352, 1359 (9th Cir. 1985)

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In this instance, the initial order scheduling trial issued on July 15, 2011. Plaintiff will have

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had one year to prepare for the jury trial set on July 17, 2012. Plaintiff failed to file his pretrial

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statement in compliance with the scheduling order, which resulted in the February 28, 2012, jury trial

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date being vacated. Plaintiff was granted a continuance to file a motion to reopen discovery, which

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he failed to file. When the Court set the hearing to determine the new trial date, Plaintiff filed a

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motion requesting the date be set in July 2012. (ECF No. 58.) The Court finds that Plaintiff has had

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adequate time to prepare for trial and has failed to show that he has been diligent in his attempts to

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prepare for trial. The first factor weighs against granting the continuance.

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Plaintiff requests a continuance so he can prepare for trial once he is released from custody,

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however, Plaintiff is being released from custody on June 16, 2012, which will allow him a month

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to prepare for trial. Additionally, although Plaintiff alleges that he is being denied his legal property,

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the court will prepare the jury instructions, verdict form, voir dire questions, and statement of the

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case. Plaintiff is mainly required to prepare the factual presentation of his case. Given that Plaintiff

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will have a month to prepare for trial once he is released from custody, the second factor weighs
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against Plaintiff’s motion for a continuance.

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This is the second trial date that Plaintiff has received and trial is set in two months. Given

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the weight of the Court’s case load and the difficulty in finding a new trial date, the inconvenience

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to the Court is significant. While Defendants argue they have already been prejudiced by the delay,

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they fail to set forth any facts that indicate they or their witnesses will be inconvenienced by the

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delay. While there is some inconvenience that would result from granting the continuance, the Court

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finds that this factor is neutral.

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Finally, Plaintiff fails to show that he will suffer harm from the denial of the continuance.

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Plaintiff does not state what he has been unable to do to prepare for trial. The only deadline set prior

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to Plaintiff’s release from custody is the motions in limine deadline. Should Plaintiff wish to file

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motions in limine,. Plaintiff shall be granted an extension of time to June 8, 2012, to file his motions

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in limine and opposition to Defendants’ motions in limine. All remaining trial deadlines are set for

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July 12, 2012, almost a month after Plaintiff will be released from custody. The Court does not find

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that Plaintiff will suffer any harm from the denial of his motion for a continuance, and the fourth

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factor weighs against granting the continuance.

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The factors to be considered in deciding whether to grant Plaintiff’s motion weigh against

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granting Plaintiff’s motion for a continuance of the trial date, and Plaintiff’s motion shall be denied.

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The Court requests that defense counsel contact the prison and facilitate Plaintiff’s access to his legal

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property and materials so he is able to prepare motions in limine if he so desires. Accordingly, it is

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HEREBY ORDERED that:

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Plaintiff’s motion to vacate the jury trial is DENIED;

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2.

Defense counsel shall contact the prison to facilitate Plaintiff’s access to his legal

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property and materials needed to prepare for trial; and
3.

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Plaintiff’s motions in limine are due on or before June 8, 2012, and Defendants’
opposition shall be due on or before June 20, 2012.

IT IS SO ORDERED.

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Dated:
0m8i78

May 31, 2012
CHIEF UNITED STATES DISTRICT JUDGE
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