Gonzalez v. Cate et al

Filing 41

ORDER GRANTING Motion to Modify Discovery Scheduling Order 40 ; ORDER EXTENDING Discovery Deadline for Limited Purpose Discussed in This Order; ORDER EXTENDING Dispositive Motions Deadline for All Parties to This Action, signed by Magistrate Judge Gary S. Austin on 3/5/12: New Discovery Cut-Off Date: 05/06/2012; New Dispositive Motions Deadline: 07/14/2012. (Hellings, J)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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ZACARIAS GONZALEZ,

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Plaintiff,
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1:09-cv-02149-LJO-GSA-PC
ORDER GRANTING MOTION TO MODIFY
DISCOVERY/SCHEDULING ORDER
(Doc. 40.)

vs.
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ORDER EXTENDING DISCOVERY DEADLINE
FOR LIMITED PURPOSE DISCUSSED IN THIS
ORDER

GUINN, et al.,

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ORDER EXTENDING DISPOSITIVE MOTIONS
DEADLINE FOR ALL PARTIES TO THIS
ACTION

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New Discovery Cut-Off Date:

05/06/2012

New Dispositive Motions Deadline:

07/14/2012

Defendants.

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_________________________/
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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. Plaintiff filed the Complaint commencing this action on November 30, 2009. (Doc. 1.)

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This case now proceeds on the First Amended Complaint, filed on December 6, 2010, against

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defendant Guinn (“Defendant”) for failure to protect Plaintiff, in violation of the Eighth

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Amendment. (Doc. 16.)

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On July 6, 2011, the Court issued a Discovery/Scheduling Order establishing deadlines

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of March 6, 2012 for completion of discovery, and May 14, 2012 for the parties to file pretrial

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dispositive motions. (Doc. 28.) This case is presently in the discovery phase. On March 2,

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2012, Defendant filed a motion to modify the Discovery/Scheduling Order to extend the

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discovery and dispositive motions deadlines. (Doc. 40.) Defendant's motion to modify the

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Discovery/Scheduling Order is now before the Court.

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II.

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MOTION TO MODIFY SCHEDULING ORDER
Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P.

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). 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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Defendant requests an extension of the discovery deadline of March 6, 2012, to allow

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him to take Plaintiff’s deposition. Defendant presents evidence that on February 22, 2012,

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Defendant’s counsel ("Counsel") attempted to take Plaintiff’s deposition but discovered, at the

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deposition, that Plaintiff does not speak English and was unable to participate in the deposition

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without the assistance of an interpreter. (Declaration of David Brice, Doc. 40 at 5 ¶¶2, 5, 6.)

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Counsel then suspended the deposition. (Id. ¶7.) Defendant also requests an extension of the

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dispositive motions deadline, because the preparation of Defendant’s dispositive motion

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requires Plaintiff’s deposition to be taken.

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The Court finds that Defendant has shown due diligence in attempting to take Plaintiff’s

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deposition before the expiration of the discovery deadline established by the Court's

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Discovery/Scheduling Order. Therefore, the discovery deadline shall be extended for the

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limited purpose of taking Plaintiff’s deposition. The Court also finds that Defendant has

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presented good cause to extend the dispositive motions deadline. Thus, good cause appearing,

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Defendant's motion to modify the Discovery/Scheduling Order shall be granted.

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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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GRANTED;
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The deadline for the completion of discovery is extended from March 6, 2012 to
May 6, 2012, for the limited purpose of Defendant taking Plaintiff’s deposition;

3.

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Defendant’s motion to modify the Court's Discovery/Scheduling Order is

The deadline for filing and serving pretrial dispositive motions is extended from
May 14, 2012 to July 14, 2012, for all parties to this action; and

3.

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All other provisions of the Court's July 6, 2011 Discovery/Scheduling Order
remain the same.

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IT IS SO ORDERED.
Dated:
6i0kij

March 5, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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