McGlothin v. Harrington et al

Filing 62

ORDER DENYING Defendants' 60 Motion to Modify the Discovery and Scheduling Order, signed by Magistrate Judge Dennis L. Beck on 4/2/2013. (Dispositive Motions to be Filed Within 14 Days.) (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL JOHN McGLOTHIN,

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Plaintiff,

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v.

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J. TORRES, et al.,

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1:10cv00247 AWI DLB PC
ORDER DENYING DEFENDANTS’
MOTION TO MODIFY THE DISCOVERY
AND SCHEDULING ORDER
(Document 60)

Defendants.

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Plaintiff Michael John McGlothin (“Plaintiff”), a California state prisoner proceeding pro se,

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filed this civil rights action pursuant to 42 U.S.C. § 1983 on February 16, 2010. Plaintiff filed a

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Second Amended Complaint on June 13, 2011. This action is proceeding on Plaintiff’s Eighth

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Amendment claim against Defendants Castro, Jose and Steen.1
On May 4, 2012, the Court issued a Discovery and Scheduling Order. The dispositive

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motion deadline was March 14, 2013.

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On February 27, 2013, prior to the dispositive motion deadline, Defendants filed a Motion to

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Modify the Discovery and Scheduling Order. Defendants seek a 45 day extension of the dispositive

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motion deadline.

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Plaintiff opposed the motion on March 22, 2013.

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Defendants did not file a reply and the motion is now deemed submitted pursuant to Local

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Rule 230(l).

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On February 6, 2013, Defendants filed a notice of the death of Defendant Torres pursuant to Federal Rule of Civil
Procedure 25(a).

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DISCUSSION

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Modification of the pretrial scheduling order requires a showing of good cause. Fed. R. Civ.

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P. 16(b)(4). “The schedule may be modified ‘if it cannot reasonably be met despite the diligence of

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the party seeking the extension.’” Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087

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(9th Cir. 2002) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992)).

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“If the party seeking the modification ‘was not diligent, the inquiry should end’ and the motion to

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modify should not be granted.” Id.

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Here, Defendants request a 45 day extension of the March 14, 2013, dispositive motion
deadline so that they may consult with a second medical expert and obtain a declaration to support a

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motion for summary judgment. According to the Declaration of Benjamin R. Dore, in October

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2012, counsel sought the opinion of a physician employed by CDCR regarding Plaintiff’s alleged

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rash. The physician reviewed Plaintiff’s medical file and offered her opinion. Based on her opinion,

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counsel drafted a declaration for her signature. However, according to Defendant, this expert

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“recently” became “unavailable.” Dore Decl. ¶¶ 3-6. Counsel has contacted another physician, but

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he needs to review Plaintiff’s voluminous medical records prior to forming an opinion. Dore Decl. ¶

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7. Counsel states that Plaintiff’s medical records are currently being scanned into a database, which

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will allow the expert to review them. Defendants contend that the additional 45 days is necessary to

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complete the scanning process, allow the expert to review them and form an opinion, and prepare

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and execute a declaration. Dore Dec. ¶¶ 9-11.

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Plaintiff opposes the request, arguing that Defendants have had more than enough time to

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find the “mystery woman.” Opp. 1. This is not the issue, however, as Defendants have said that she

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is now unavailable.

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Nonetheless, Defendants’ vague reference to their expert recently becoming “unavailable,”

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without further explanation, is insufficient for the Court to determine whether good cause exists.

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Although Defendants state that they contacted the physician in October, there is no indication as to

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when, and why, she became “unavailable.” Without this information, the Court cannot conclude that

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Defendants’ actions were diligent.

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Accordingly, Defendants’ Motion to Modify the Discovery and Scheduling Order is

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DENIED. However, because the March 14, 2013, deadline expired during the pendency of this

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motion, Defendants will be granted 14 days from the date of service of this order within which to file

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a dispositive motion.

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IT IS SO ORDERED.

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Dated:

/s/ Dennis

April 2, 2013

L. Beck

UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

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