Ivory v. Tilton, et al.

Filing 97

ORDER signed by Magistrate Judge Gary S. Austin on 7/26/2012 granting 95 Motion to modify Discovery / Scheduling Order. (Dispositive Motions filed by 8/10/2012).(Lundstrom, T)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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NORMAN IVORY,

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Plaintiff,

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vs.
JAMES E. TILTON, et al.,

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1:09-cv-01272-AWI-GSA-PC
ORDER GRANTING MOTION TO MODIFY
DISCOVERY/SCHEDULING ORDER
(Doc. 95.)
ORDER EXTENDING DISPOSITIVE MOTIONS
DEADLINE FOR ALL PARTIES TO THIS
ACTION

Defendants.
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New Dispositive Motions Deadline:

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_________________________/

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I.

08/10/2012

BACKGROUND

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Plaintiff is a prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. §

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1983. This action now proceeds on the original Complaint filed by Plaintiff on July 20, 2009,

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against defendant Correctional Officer S. Meraz for use of excessive force in violation of the

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Eighth Amendment, and against defendant Correctional Captain M. V. Sexton for retaliation in

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violation of the First Amendment.1 (Doc. 1.)

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All other claims and defendants were dismissed from this action by the Court on August 23, 2010, based on
Plaintiff’s failure to state a claim. (Doc. 30.)

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On May 31, 2011, the Court issued a Discovery/Scheduling Order commencing

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discovery and establishing a deadline of April 9, 2012 for the parties to file pretrial dispositive

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motions. (Doc. 45.) On March 27, 2012, the Court issued an order extending the dispositive

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motions deadline to July 25, 2012. (Doc. 81.) On July 25, 2012, Defendants filed a motion for

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another extension of the dispositive motions deadline. (Doc. 95.)

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II.

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MOTION TO MODIFY SCHEDULING ORDER
Modification of the Court’s scheduling order requires a showing of good cause, Fed. R.

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

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

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the 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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Defendants request a sixteen-day extension of the dispositive motions deadline for all

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parties to this action. Defendants’ counsel seeks additional time due to a heavy workload in

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which his involvement in numerous other matters has prevented the filing of a motion for

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summary judgment in this action. (Declaration of Jeffrey Steele, Doc. 95-1.)

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The Court finds that Defendants have shown due diligence in attempting to meet the

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deadline for filing dispositive motions established by the Court's Discovery/Scheduling Order.

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Thus, good cause appearing, Defendants’ motion to modify the Discovery/Scheduling Order

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shall be granted, and the dispositive motions deadline shall be extended for all parties to this

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action.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Defendants’ motion to modify the Court's Discovery/Scheduling Order is
GRANTED; and

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2.

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The deadline to file pretrial dispositive motions is extended from July 25, 2012
to August 10, 2012 for all parties to this action.

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IT IS SO ORDERED.

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Dated:
6i0kij

July 26, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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