Misko v. Sullivan et al

Filing 70

ORDER Granting Defendant's 69 Motion to Modify Scheduling Order signed by Magistrate Judge Barbara A. McAuliffe on 02/20/2015. Dispositive Motions filed by 4/24/2015. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN T. MISKO,

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Plaintiff,

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v.
WILLIAM SULLIVAN, et al.,

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Defendants.

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Case No.: 1:10-cv-00713-LJO-BAM PC
ORDER GRANTING DEFENDANT’S MOTION
TO MODIFY SCHEDULING ORDER
(ECF No. 69)
Dispositive Motion Deadline: April 24, 2015

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I.
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Background

Plaintiff John T. Misko (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against Defendant Williams
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for deliberate indifference in violation of the Eighth Amendment. On May 20, 2014, the Court issued
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an Amended Discovery and Scheduling Order. Pursuant to that order, the discovery deadline was
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November 18, 2014, and the dispositive motion deadline was February 18, 2015.
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On February 18, 2015, Defendant Williams filed the instant motion to modify the dispositive
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motion deadline set forth in the Amended Discovery and Scheduling Order. (ECF No. 69.) The Court
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finds a response unnecessary and the motion is deemed submitted.1 Local Rule 230(l).

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II.

Legal Standard

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Plaintiff will not be prejudiced by the inability to respond. If the Court grants the motion, it will extend the time for
either party to file a dispositive motion.

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Pursuant to Rule 16(b), a scheduling order “may be modified only for good cause and with the

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judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily considers the

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diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

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609 (9th Cir. 1992). The court may modify the scheduling order “if it cannot reasonably be met

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despite the diligence of the party seeking the extension.” Id. If the party was not diligent, the inquiry

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should end. Id.

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III.

Discussion

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Defendant Williams explains that in accordance with the Amended Discovery and Scheduling

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Order, Plaintiff’s deposition was completed in November 2014. (ECF No. 69-1, Declaration of Ellen

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Hung (“Hung Dec.”) ¶ 3.) Defense counsel also has been analyzing Plaintiff’s medical records,

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central file and deposition transcript and has been working on a motion for summary judgment. (Hung

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Dec. ¶ 4.) However, Defendant Williams reports that a modification of the dispositive motion

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deadline is necessary due to defense counsel’s serious ongoing medical concerns, which have resulted

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in extensive absences from work. (Hung Dec. ¶ 5.) As such, Defendant Williams requests a sixty-

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five-day continuance of the dispositive motion deadline to April 24, 2015.

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Having considered Defendant’s moving papers, the Court finds good cause for the continuance

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of the dispositive motion deadline. Defendant has been diligent in completing discovery and working

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on the dispositive motion, but the relevant deadline cannot be met due to medical concerns

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experienced by defense counsel. The brief continuance will not result in measurable prejudice to

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Plaintiff or to witnesses in a matter that has been pending since 2010.

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IV.

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Based on the above, Defendant Williams’ motion to modify the scheduling order is HEREBY

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Conclusion and Order

GRANTED. The dispositive motion deadline is extended to April 24, 2015.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

February 20, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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