Fields v. Rosenthal

Filing 51

ORDER DENYING Plaintiff's 47 Motion to Modify Scheduling Order signed by Magistrate Judge Gary S. Austin on 1/2/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ORDER DENYING PLAINTIFF’S MOTION
TO MODIFY SCHEDULING ORDER
(Doc. 47.)

Plaintiff,

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1:10-cv-01764-GSA-PC

KEVIN E. FIELDS,

vs.
RICHARD ROSENTHAL,

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Defendant.

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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, which was granted by the Court on September 27, 2013,
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extending the discovery deadline to November 18, 2013, and the dispositive motions deadline

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to January 17, 2014. (Docs. 36, 40.)

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On December 6, 2013, Plaintiff filed a second motion to modify the Scheduling Order.

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(Doc. 47.) On December 19, 2013, Defendant filed an opposition. (Doc. 49.) Plaintiff has not

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filed a reply to the opposition.

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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 from November 18, 2013 to

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February 14, 2014. However, Plaintiff has not established good cause in his motion for

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modification of the Scheduling Order.1 Defendant opposes Plaintiff’s motion as moot, offering

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evidence that discovery between the parties is completed, and for Plaintiff’s failure to show

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good cause. The Court finds no good cause to modify the Scheduling Order in this action at

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this stage of the proceedings. Therefore, Plaintiff’s motion to modify the Scheduling Order

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shall be denied.

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///

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While Plaintiff refers to a declaration in support of his motion, there is no evidence on the
court’s record that Plaintiff filed a declaration. (Court Record.) Defendant has provided the court with a copy of
Plaintiff’s declaration which was served upon Defendant. (Exh. A to Opp’n, Doc. 49-1 at 5.) However, the
declaration is not dated or signed and therefore, if filed, would be stricken from the record under Local Rule 131
which requires “[a]ll pleadings and non-evidentiary documents [to be] signed by the individual attorney for the
party presenting them, or by the party involved if that party is appearing in propria persona.” (Id. at 7.)
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III.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that plaintiff’s motion to modify

the Court's Scheduling Order, filed on December 6, 2013, is DENIED.

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IT IS SO ORDERED.
Dated:

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January 2, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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