Johnson v. Gonzalez et al

Filing 98

ORDER Granting Defendants' Motion To Modify The Scheduling Order (ECF No. 96 ), signed by Magistrate Judge Barbara A. McAuliffe on 11/1/2013. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY JOHNSON,

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Plaintiff,

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v.
L. GONZALEZ, et al.,

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Defendants.

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Case No.: 1:09-cv-01264-AWI-BAM PC
ORDER GRANTING DEFENDANTS’ MOTION
TO MODIFY THE SCHEDULING ORDER
(ECF No. 96)

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I.

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Plaintiff Anthony Johnson (“Plaintiff”) is a state prisoner proceeding pro se and in forma

Introduction

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s

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complaint, filed on July 21, 2009, against Defendants L. Gonzalez and A. Murrieta for excessive force

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in violation of the Eighth Amendment. On August 15, 2013, following remand by the Ninth Circuit

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Court of Appeals, the Court extended the dispositive motion deadline in this matter to November 1,

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2013.
Currently before the Court is Defendants’ motion to modify the scheduling order filed on

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October 31, 2013. Defendants seek a brief extension of the dispositive motion deadline to November

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15, 2013. The Court finds an opposition unnecessary and the motion is deemed submitted. Local

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Rule 230(l).

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II.

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Discussion
A. Legal Standard

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Pursuant to Rule 16(b), a scheduling order “may be modified only for good cause and with the

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judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily considers the

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diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

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609 (9th Cir. 1992). The district court may modify the scheduling order “if it cannot reasonably be

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met despite the diligence of the party seeking the extension.” Id. If the party was not diligent, the

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inquiry should end. Id.
B. Analysis

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Defendants seek a fourteen-day extension of time to file their motion for summary judgment.

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Defense counsel explains that the brief extension is necessary because, despite his best efforts, he

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cannot complete Defendants’ motion for summary judgment by the November 1, 2013 deadline.

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Defense counsel details the myriad briefings and other deadlines that he has been required to meet in

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other cases during the time since the Court set the November 1 deadline. Defense counsel contends

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that the summary judgment motion will likely dispose of Plaintiff’s Eighth Amendment claims in this

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case.

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Having considered Defendants’ moving papers, the Court finds that Defendants have been

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diligent in their efforts to litigate this case and, due to the caseload of their counsel, they require a

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short extension of time to complete the motion for summary judgment, which may dispose of

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Plaintiff’s claims. There is no indication that such extension will cause undue delay in the resolution

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of this matter or that it will result in prejudice to Plaintiff.

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III.

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For the reasons stated, Defendants’ motion to modify the scheduling order to extend the

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deadline for filing dispositive motions is GRANTED. Defendants shall file and serve their dispositive

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motion, if any, on or before November 15, 2013.

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IT IS SO ORDERED.

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Dated:

Conclusion and Order

/s/ Barbara

November 1, 2013

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE
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