Atcherley v. Clark et al

Filing 97

ORDER Granting Plaintiff's 94 Motion to Modify the Discovery and Scheduling Order signed by Magistrate Judge Dennis L. Beck on 07/09/2014. Deadline to Amend: 8/29/2014; Discovery Cut-off: 9/29/2014; Dispositive Motions filed by 11/26/2014. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILBUR ATCHERLEY,

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Plaintiff,
v.
CLARK, et al.,

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Defendants.

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Case No.: 1:12cv00225 LJO DLB (PC)
ORDER GRANTING PLAINTIFF’S MOTION TO
MODIFY THE DISCOVERY AND SCHEDULING
ORDER
(Document 94)
Deadline to Amend: August 29, 2014
Discovery Cut-off: September 29, 2014
Dispositive Motions: November 26, 2014

Plaintiff Wilbur Atcherley (“Plaintiff”) is a prisoner in the custody of the California
Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The action is currently in the
discovery phase.
Pursuant to the March 18, 2014, Discovery and Scheduling Order, the deadline to amend is

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July 15, 2014, the discovery cut-off is August 14, 2014, and the dispositive motion deadline is October
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13, 2014.
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On July 2, 2014, Plaintiff filed a request to extend the above deadlines by 45 days. The Court
deems the motion suitable without opposition. Local Rule 230(l).

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DISCUSSION

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Modification of the pretrial scheduling order requires a showing of good cause. Fed. R. Civ. P.
16(b)(4). “The schedule may be modified ‘if it cannot reasonably be met despite the diligence of the
party seeking the extension.’” Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th
Cir. 2002) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992)). “If
the party seeking the modification ‘was not diligent, the inquiry should end’ and the motion to modify
should not be granted.” Id.
As Plaintiff points out, this action is proceeding against ten Defendants who filed answers over

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a two-month period due to differences in service dates. As a result, for at least some Defendants, the
Discovery and Scheduling order became applicable to them two months after the order was initially
issued.1
Moreover, it appears that Plaintiff has served a large amount of discovery and the Court has

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therefore granted Defendants numerous extensions of time to respond.
Finally, Plaintiff submitted a Second Amended Complaint on June 23, 2014. As Plaintiff did

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not have leave to amend, the Court struck the complaint on June 27, 2014. Based on Plaintiff’s
statements in the instant motion, he moved to amend as part of his opposition to Defendant
Anderson’s pending motion to dismiss. Plaintiff states that the proposed Second Amended Complaint
corrects the deficiencies raised in the motion to dismiss. However, because the pleading was not
clearly labeled as a motion to amend, it was not docketed as a motion to amend. As a result, the Court
issued the order striking the pleading. Extending the deadline to amend will permit Plaintiff to file a
clearly labeled motion to amend, along with his proposed Second Amended Complaint. If Plaintiff
files a motion to amend, Defendants may oppose the motion pursuant to Local Rule 230(l).

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Although Defendant Anderson filed an answer, the Court granted a request to strike the answer after new counsel was
appointed. Defendant Anderson filed a motion to dismiss on May 27, 2014, and the motion is pending.

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Accordingly, the Court finds good cause to modify the Discovery and Scheduling Order as to
all parties and GRANTS Plaintiff’s motion. The new deadlines are as follows:
Deadline to amend pleadings:

August 29, 2014

Discovery cut-off:

September 29, 2014

Dispositive motion deadline:

November 26, 2014

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IT IS SO ORDERED.
Dated:

/s/ Dennis

July 9, 2014

L. Beck

UNITED STATES MAGISTRATE JUDGE

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