Bryant v. Gallagher et al

Filing 93

ORDER signed by Magistrate Judge Barbara A. McAuliffe on 12/19/2012 granting 92 Motion to modify the Scheduling Order to vacate the deadline for filing Dispositive Motions. (Lundstrom, T)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
KEVIN DARNELL BRYANT,

CASE NO. 1:11-cv-0446-LJO-BAM PC

9
Plaintiff,
10

ORDER GRANTING DEFENDANT’S MOTION
TO MODIFY THE SCHEDULING ORDER TO
VACATE THE DEADLINE FOR FILING
DISPOSITIVE MOTIONS
(Doc. 92)

v.
11
P. GALLAGHER, et al.,
12
Defendants.
13

/

14
Plaintiff Kevin Darnell Bryant (“Plaintiff”) is a state prisoner proceeding pro se and in forma
15
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On December 17, 2012, Defendants
16
filed a motion to modify the scheduling order. (Doc. 92.)
17
BACKGROUND
18
On February 22, 2012, the Court entered a Scheduling Order. Pursuant to that order, the
19
deadline to file pre-trial dispositive motions is December 31, 2012. (Doc. 50.)
20
On October 22, 2012, Defendants filed a motion to compel Plaintiff to provide supplemental
21

responses to interrogatories and requests for production of documents.1 (Doc. 77.) Defendants

22
believe that the outstanding discovery is directly relevant to the claims against them.
23
On December 6, 2012, the Court ordered Plaintiff to file an opposition or statement of non24
opposition to Defendants’ motion to compel by January 5, 2013. The Court also warned Plaintiff
25
that his failure to file a response would result in dismissal of this action, with prejudice, for failure
26
27
1

28

On October 26, 2012, Plaintiff filed a generalized motion to compel discovery. Doc. 78.

1

1

to prosecute. (Doc. 91.)

2
3

Due to the pending motion to compel, Defendants seek to vacate the December 31, 2012
deadline for filing dispositive motions. (Doc. 92.)

4
5

DISCUSSION
A.

6

Legal Standard
Pursuant to Federal Rule of Civil Procedure 16(b), a scheduling order "may be modified

7

only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). The "good cause"

8

standard "primarily considers the diligence of the party seeking the amendment." Johnson v.

9

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

10

scheduling order “if it cannot reasonably be met despite the diligence of the party seeking the

11

extension.” Id.

12

B.

13

Analysis
Defendants contend that there is good cause to modify the scheduling order because their

14

motion to compel will not be resolved until after the dispositive motion deadline has passed.

15

Defendants believe that the outstanding discovery contains information necessary to their

16

anticipated summary judgment motion. Defendants also note that if Plaintiff fails to comply with

17

the Court’s order, then the action will be dismissed, which will obviate the need for Defendants

18

to file a dispositive motion. The Court finds that good cause exists to modify the scheduling

19

order. Based upon the pleadings and the status of the case, the Court finds that it may rule on the

20

motion in the absence of plaintiff’s opposition.

21

CONCLUSION AND ORDER

22

For good cause appearing, Defendants’ motion to modify the scheduling order is

23

GRANTED. The December 31, 2012 dispositive motion deadline is HEREBY VACATED. If

24

necessary and appropriate, the Court will reset the dispositive motion deadline upon resolution of

25

the pending motions to compel.

26
27

IT IS SO ORDERED.
Dated:
10c20k

December 19, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

28
2