Shorter v. Rosenthal et al

Filing 42

ORDER Granting Plaintiff's 35 Motion for Modification of Discovery and Scheduling Order; ORDER Denying Plaintiff's 36 Motion Regarding Defendant's Counsel, signed by Magistrate Judge Dennis L. Beck on 10/9/12. Discovery due by 11/30/2012; Dispositive Motions filed by 1/11/2013. (Gonzalez, R)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ANTHONY SHORTER, 10 Plaintiff, 11 v. Case No. 1:10-cv-00610-LJO-DLB PC ORDER GRANTING PLAINTIFF’S MOTION FOR MODIFICATION OF DISCOVERY AND SCHEDULING ORDER 12 R. ROSENTHAL, et al., 13 Defendants. 14 ECF No. 35 ORDER DENYING PLAINTIFF’S MOTION REGARDING DEFENDANT’S COUNSEL 15 ECF No. 36 16 Plaintiff Anthony Shorter (“Plaintiff”) is a California state prisoner proceeding pro se and in 17 18 forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action is 19 proceeding on Plaintiff’s third amended complaint against Defendants R. Rosenthal, G. Doan, and S. 20 Wortman for denial of access to the courts. Pending before the Court are: 1) Plaintiff’s motion for 21 extension of time to file discovery, filed August 15, 2012, and 2) Plaintiff’s motion regarding 22 Defendant’s counsel, filed August 20, 2012. The matter is submitted pursuant to Local Rule 230(l). 23 I. 24 August 15, 2012 Motion Plaintiff moves for an extension of the discovery cutoff date. Plaintiff contends that he was 25 unaware that the discovery cutoff date was not the date by which discovery was to be served, but 26 when discovery ended. The Court had set a discovery cutoff date of August 13, 2012. Discovery 27 and Scheduling Order, filed Dec. 13, 2011, ECF No. 30. On July 23, 2012, Plaintiff had mailed a 28 request to Defendants’ counsel for discovery. On August 7, 2012, Defendants’ counsel declined to 1 1 respond because the request was untimely. Plaintiff contends that these documents are necessary 2 and that this was error on Plaintiff’s part. 3 The decision to modify a scheduling order is within the broad discretion of the district court. 4 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (quoting Miller v. Safeco 5 Title Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985)). Pursuant to Rule 16 of the Federal Rules of Civil 6 Procedure, a pretrial scheduling order “shall not be modified except upon a showing of good cause,” 7 and leave of court. Fed. R. Civ. P. 16(b)(4); Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087-88 8 (9th Cir. 2002). Although “the existence or degree of prejudice to the party opposing the 9 modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the 10 moving party’s reasons for seeking modification.” Johnson, 975 F.2d at 609. 11 The Court finds sufficient good cause to grant a modification. Plaintiff was reasonably 12 diligent in his pursuit of the modification, having filed it prior to the expiration of the deadline, and 13 soon after he realized his error. Accordingly, the Court will set a discovery cutoff date of November 14 30, 2012. The Court will also modify the dispositive motion deadline and set it for January 11, 15 2013. All other provisions of the December 13, 2011 Discovery and Scheduling Order remain 16 applicable. 17 II. August 20, 2012 Motion Plaintiff complains that Defendant’s counsel had been counsel in a prior case involving 18 19 Plaintiff. Plaintiff contends that he had filed a petition for writ of habeas corpus in Kings County 20 Superior Court, and upon examining his legal documents discovered that Defendant’s counsel in this 21 action had represented prison officials in his petition. Plaintiff requests that the Court find out if any 22 court or state bar rules were violated, and whether Defendant’s counsel had an affirmative obligation 23 to make Plaintiff aware of her prior representation. Plaintiff provides no legal basis for his motion, nor does he explain why counsel’s previous 24 25 representation violates any rules of this Court or the state bar. In both this case and the prior 26 petition, Defendants’ counsel is representing the interests of prison officials. It is unclear how this 27 would violate any rules. The motion will be denied. 28 /// 2 1 III. Conclusion and Order 2 Based on the foregoing, it is HEREBY ORDERED that: 3 1. Plaintiff’s motion for modification of the Discovery and Scheduling Order, filed August 4 15, 2012, is granted; 5 2. The discovery cutoff date is November 30, 2012, and the dispositive motion deadline is 6 January 11, 2013; 7 3. All other provisions of the Discovery and Scheduling Order remain in effect; and 8 4. Plaintiff’s motion, filed August 20, 2012, is denied. 9 10 11 IT IS SO ORDERED. 12 Dated: /s/ Dennis October 9, 2012 L. Beck UNITED STATES MAGISTRATE JUDGE 13 DEAC_Signature-END: 14 3b142a 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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