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