Livingston v. Sanchez et al

Filing 57

ORDER GRANTING Defendants' 56 Motion for Modification of Discovery Deadline signed by Magistrate Judge Barbara A. McAuliffe on 8/14/2013. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WARNER LIVINGSTON,

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Plaintiff,
v.
J. SANCHEZ, et al.,

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Defendant.

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Case No.: 1:10-cv-01152-LJO-BAM PC
ORDER GRANTING DEFENDANTS’ MOTION
FOR MODIFICATION OF DISCOVERY
DEADLINE
(ECF No. 56)

Plaintiff Warner Livingston (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s

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complaint, filed June 25, 2010, against Defendants Sanchez and Ayon for excessive force in violation

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of the Eighth Amendment. On August 13, 2013, Defendants Sanchez and Ayon filed a motion to

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extend the discovery and dispositive motion deadlines. (Doc. 56.) The Court does not find a response

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necessary; and the motion is deemed submitted. Local Rule 230(l).

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I.

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On December 13, 2012, the Court entered a Discovery and Scheduling Order. Pursuant to that

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order, the discovery deadline was August 13, 2013, and the dispositive motion deadline is October 24,

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2013. (Doc. 52.)

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BACKGROUND

Defendants filed the instant motion to extend both the discovery deadline and the dispositive
motion deadline an additional thirty days. Defendants explain that they served Plaintiff with
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interrogatories, requests for admissions and requests for production on June 11, 2013. (ECF No. 56,

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Declaration of Tyler V. Heath (“Heath Dec.”) at ¶ 3, Ex. A.) Plaintiff’s responses were due on July

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29, 2013, but Plaintiff did not serve any responses. (Heath Dec. at ¶ 3.)

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On August 5, 2013, Plaintiff was deposed. At that time, defense counsel asked Plaintiff about

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his responses to Defendants’ written discovery. (Id. at ¶ 4.) Plaintiff claimed that he received the

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requests late, but that he would try to respond by August 29, 2013. (Id.) Plaintiff also stated that he

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filed a request for an extension of time with the Court. (Id.) Defense counsel subsequently sent

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Plaintiff a letter memorializing this discussion. Counsel informed Plaintiff that the requests were

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served timely, that Plaintiff’s responses were late, and that no request for an extension of time had

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been timely filed with the Court. (Id. at ¶ 5, Ex. B.) Thereafter, defense counsel received a letter from

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Plaintiff contending that he received the requests late, but that he would attempt to answer them by

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August 29, 2013. (Id. at ¶ 6.)

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Defense counsel reports that Plaintiff still has not answered Defendants’ written discovery and

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that Plaintiff has not requested an extension of time from the Court. (Id. at ¶ 7.) As a result,

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Defendants now request that the discovery deadline be extended thirty days to September 12, 2013, for

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the limited purpose of allowing Plaintiff to respond to Defendants’ discovery requests and to allow

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Defendants to review the responses and file any appropriate motion. Defendants also request a

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corresponding extension of the dispositive motion deadline.

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II.

DISCUSSION

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Pursuant to Federal Rule of Civil Procedure 16(b), a scheduling order “may be modified only

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

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“primarily considers the diligence of the party seeking the amendment.” Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). The district court may modify the scheduling

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order “if it cannot reasonably be met despite the diligence of the party seeking the extension.” Id.

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Given Defendants’ efforts to secure responses to their discovery requests, the Court finds good

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cause to extend the relevant deadlines for the limited purpose of obtaining Plaintiff’s responses and, if

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necessary, the filing of a motion to compel. The Court also finds it appropriate to extend the

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dispositive motion deadline to allow for completion of discovery.
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III.

CONCLUSION AND ORDER

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Good cause appearing, Defendants’ motion for modification of the discovery and dispositive

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motion deadlines is GRANTED. The deadline to complete discovery is extended thirty (30) days to

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September 12, 2013, and the deadline to file dispositive motions is extended thirty (30) days to

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November 25, 2013.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 14, 2013

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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