Myers v. City of Madera et al

Filing 49

ORDER DENYING Request to Amend Scheduling Order (Doc. 48 ), Signed by Magistrate Judge Jennifer L. Thurston on 8/4/2011. (Arellano, S.)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15

STEPHEN MYERS,

)
)
Plaintiff,
)
)
v.
)
)
MICHAEL KIME, et al.,
)
)
Defendants.
)
_______________________________________ )

Case No.: 1:10-cv-01398 AWI JLT
ORDER DENYING REQUEST TO AMEND
SCHEDULING ORDER
(Doc. 48)

16
17

Before the Court is the request of Defendants to amend the scheduling order. (Doc. 48) In

18

the request, Defendants indicate that Plaintiff has failed to file an amended pleading and their motion

19

to dismiss on this basis is scheduled to be heard on August 29, 2011. Id. at 3. Defendants indicate

20

that they attempted to obtain a stipulation from Plaintiff to extend the deadlines set forth in the

21

scheduling order but he did not respond. Id. at 2-3. For the reasons discussed below, the Court

22

DENIES the request to amend the scheduling order at this time.

23

I.

24
25
26
27
28

Background
On October 5, 2010, the Court issued the scheduling order in this case. In it, the Court

notified the parties,
The dates set in this Order are considered to be firm and will not be modified
absent a showing of good cause even if the request to modify is made by
stipulation. Stipulations extending the deadlines contained herein will not be
considered unless accompanied by affidavits or declarations, and where
appropriate attached exhibits, which establish good cause for granting the relief
1

1

requested.

2

(Doc. 11 at 7.) Since the time of the scheduling order, the entity defendants filed a motion for

3

judgment on the pleadings (Doc. 12) which was granted but gave Plaintiff 30 days leave to amend

4

his complaint. (Doc. 23) On March 29, 2011, Plaintiff filed his First Amended Complaint (Doc 24),

5

in response to which Defendants filed a motion to dismiss. (Doc. 30) On June 9, 2011, the Court

6

granted the motion to dismiss and granted Plaintiff 21 days leave to amend. (Doc. 41) When

7

Plaintiff did not file an amended complaint, on July 15, 2011. (Doc. 47)

8
9
10
11

In their current filing, Defendants seek extensions of the dates set forth in the scheduling
order. (Doc. 48)
II.

Analysis
Pursuant to Fed. R. Civ. P. 16(b)(3), a case schedule may be modified only for good cause

12

and only with the judge’s consent. Fed. R. Civ. P. 16(b). In Johnson v. Mammoth Recreations, Inc.,

13

975 F.2d 604, 609 (9th Cir. 1992), the Court explained,

14
15
16

. . . Rule 16(b)’s “good cause” standard primarily concerns the diligence of the party
seeking the amendment. The district court may modify the pretrial schedule “if it
cannot reasonably be met despite the diligence of the party seeking the extension.”
Fed.R.Civ.P. 16 advisory committee’s notes (1983 amendment) . . .[T]he focus of the
inquiry is upon the moving party’s reasons for seeking modification. . . . If that party
was not diligent, the inquiry should end.

17
18

Parties must “diligently attempt to adhere to that schedule throughout the subsequent course

19

of the litigation.” Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. Cal. 1999); see Marcum v.

20

Zimmer, 163 F.R.D. 250, 254 (S.D. W.Va. 1995). In part, the “good cause” standard requires the

21

parties to demonstrate that “noncompliance with a Rule 16 deadline occurred or will occur,

22

notwithstanding her diligent efforts to comply, because of the development of matters which

23

could not have been reasonably foreseen or anticipated at the time of the Rule 16 Scheduling

24

conference . . .” Jackson, 186 F.R.D. at 608, emphasis added.

25

In the current request, Defendants set forth that Plaintiff has not been diligent in pursuing

26

discovery. (Doc. 48 at 2-3) However, they provided little information about their own diligence.

27

Thought the Court appreciates that discovery is impossible with an absent party, Defendants have not

28

sought the Court’s assistance in compelling responses or, in their request, demonstrated in other
2

1
2

ways their own diligence.
Therefore, because the request fails to comply with Rule 16 and fails to provide good cause

3

for the requested extension of the discovery deadlines set forth in the scheduling order, the request is

4

DENIED WITHOUT PREJUDICE.

5

IT IS SO ORDERED.

6

Dated: August 4, 2011
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3