Fields v. Rosenthal
Filing
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ORDER Granting Motion To Modify Scheduling Order (Doc. 36 ), ORDER Extending Discovery And Dispositive Motions Deadlines For All Parties To This Action New Discovery Cut-Off Date: 11/18/2013, New Dispositive Motions Deadline: 01/17/2014, signed by Magistrate Judge Gary S. Austin on 9/26/2013. (Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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Plaintiff,
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1:10-cv-01764-GSA-PC
KEVIN E. FIELDS,
ORDER GRANTING MOTION TO
MODIFY SCHEDULING ORDER
(Doc. 36.)
vs.
RICHARD ROSENTHAL,
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ORDER EXTENDING DISCOVERY AND
DISPOSITIVE MOTIONS DEADLINES
FOR ALL PARTIES TO THIS ACTION
Defendant.
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New Discovery Cut-Off Date:
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New Dispositive Motions Deadline: 01/17/2014
11/18/2013
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I.
BACKGROUND
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Plaintiff is a prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C.
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' 1983. Plaintiff initiated this action by civil complaint at the Kings County Superior Court on
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August 11, 2010 (Case #10-C0309). On September 23, 2010, defendant Richard Rosenthal
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(ADefendant@) removed the case to federal court by filing a Notice of Removal of Action
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pursuant to 28 U.S.C. ' 1441(b). (Doc. 1.) This case now proceeds on the Second Amended
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Complaint filed by Plaintiff on August 22, 2012, against Defendant Rosenthal for retaliation, in
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violation of the First Amendment. (Doc. 17.)
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On December 17, 2012, the Court issued a Scheduling Order establishing deadlines of
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August 17, 2013 for completion of discovery, and October 28, 2013 for the parties to file
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pretrial dispositive motions. (Doc. 26.) On September 3, 2013, Plaintiff filed a motion to
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modify the Scheduling Order. (Doc. 36.) Defendant has not opposed the motion.
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II.
MOTION TO MODIFY SCHEDULING ORDER
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Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P.
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16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations,
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Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the
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modification of a scheduling order must generally show that even with the exercise of due
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diligence, they cannot meet the requirement of the order. Id. The court may also consider the
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prejudice to the party opposing the modification. Id. If the party seeking to amend the
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scheduling order fails to show due diligence the inquiry should end and the court should not
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grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087
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(9th Cir. 2002). A party may obtain relief from the court=s deadline date for discovery by
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demonstrating good cause for allowing further discovery. Fed. R. Civ. P. 16(b)(4).
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Plaintiff requests an extension of the discovery deadline because further discovery is
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necessary to develop facts sufficient to prove his case should it proceed to trial. For example,
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Plaintiff declares that he needs to identify witnesses who were present when the incident in the
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law library occurred, and that he is recovering from spine surgery and taking morphine, “which
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alters my mind state.” (Motion, Doc. 36 at 4 :22-25.)
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The Court finds good cause to extend the discovery deadline in this action for ninety
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days. The Court also finds good cause to extend the dispositive motions deadline for all
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parties. Thus, good cause appearing, Plaintiff’s motion to modify the Scheduling Order shall
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be granted.
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III.
CONCLUSION
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Based on the foregoing, IT IS HEREBY ORDERED that:
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1.
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Plaintiff’s motion to modify the Court's Scheduling Order, filed on September 3,
2013, is GRANTED;
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///
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///
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2.
The deadline for the completion of discovery, including filing of motions to
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compel, is extended from August 17, 2013 to November 18, 2013 for all parties
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to this action;
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3.
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The deadline for filing and serving pretrial dispositive motions is extended from
October 28, 2013 to January 17, 2014 for all parties to this action; and
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4.
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All other provisions of the court's December 17, 2012 Scheduling Order remain
the same.
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IT IS SO ORDERED.
Dated:
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September 26, 2013
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:
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