Butler v. Wern, et al.

Filing 51

ORDER DENYING Defendants' Motion for Modification of the Scheduling Order and DENYING Motion for Summary Judgment as Untimely 49 , 50 , signed by Magistrate Judge Stanley A. Boone on 1/26/16. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARQUES BUTLER,

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Plaintiff,

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v.
STRATTON, et al.,

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Defendants.

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Case No.: 1:12-cv-01538-SAB (PC)
ORDER DENYING DEFENDANTS’ MOTION
FOR MODIFICATION OF THE SCHEDULING
ORDER AND DENYING MOTION FOR
SUMMARY JUDGMENT AS UNTIMELY
[ECF Nos. 49, 50]

Plaintiff Marques Butler is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983.
This case is proceeding on Plaintiff’s claim under the Eighth Amendment against Defendants

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Stratton and Montano.1 On May 7, 2014, Defendants Stratton and Montano filed an answer to the

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complaint, and a discovery and scheduling order was issued on May 8, 2014, setting the deadline for

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filing of all dispositive motions by March 19, 2015. (ECF Nos. 17, 18.)

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After the dispositive motion deadline expired and Defendants did not file a dispositive motion,

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the Court issued the second scheduling order setting this case for trial. Trial is currently set before the

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Defendant Wern was dismissed the action pursuant to Rule 4(m) of the Federal Rules of Civil Procedure on August 4,
2015. (ECF No. 39.)

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Honorable Dale A. Drozd on May 3, 2016, and a settlement conference is scheduled for February 22,

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2016, before Magistrate Judge Grosjean. (ECF Nos. 40, 45.)

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Now pending before the Court is Plaintiff’s motion for modification of the scheduling order

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and leave to file a motion for summary judgment, filed January 25, 2016. (ECF No. 49.) Defendants’

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motion shall be denied.

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Pursuant to Federal Rule of Civil Procedure 16(b), a scheduling order “may be modified only

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for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The district court may modify

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

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extension.” Id. “A scheduling order is not a frivolous piece of paper, idly entered, which can be

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cavalierly disregarded by counsel without peril.” Id. at 610. (citation and quotations omitted). The

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“good cause” standard “primarily considers the diligence of the party seeking the amendment.”

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). If the party seeking

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modification of the scheduling order, “was not diligent, the inquiry should end.” Id. “[C]arelessness is

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not compatible with a finding of diligence and offers no reason for a grant of relief.” Id.

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As an initial matter, the scheduling order of May 8, 2014, specifically advised the parties that

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“[a] request for an extension of a deadline set in this order must be filed on or before the expiration of

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the deadline in question and will only be granted on a showing of good cause.” (ECF No. 18, Order at

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3:1-2.) In their request, counsel for Defendants explains that the motion was filed late because he

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“reevaluated the suitability of this matter for summary judgment, and based upon the physical

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locations of Plaintiff and the Defendants at the time of the alleged use of force upon which this case is

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based, as well as the layout of the housing unit where the alleged incident took place, determined a

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motion for summary judgment would be appropriate. (Braxton Decl., ¶ 4.) The Court finds that

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Defendants’ request for an extension of time is not supported by good cause, given the record in this

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case. Defendants have not been diligent in seeking the requested relief. Defendants waited

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approximately ten months after the dispositive motion deadline expired, and approximately five

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months after the case was set for trial (and now settlement conference) before attempting to file a

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dispositive motion. In addition, nothing before the Court (beyond further research and interviews)

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suggests that Defendants’ were unaware or could not have discovered the logistical layout of the
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housing unit where the incident allegedly took place prior to the expiration of the dispositive motion

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deadline. In addition, the Court makes note of the fact that Deputy Attorney General, Jason Braxton,

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has on at least two prior occasions, waited until after the dispositive motion deadline expired and the

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case is set for settlement conference to attempt to file an untimely dispositive motion. See 1:12-cv-

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01694-AWI-SAB (PC) (dispositive motion deadline expired March 30, 2015, trial scheduled for

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January 5, 2016, settlement conference scheduled for November 13, 2015, and dispositive motion filed

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November 10, 2015) and 1:12-cv-02076-LJO-EPG (PC) (dispositive motion deadline expired

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February 9, 2015, settlement conference set for December 11, 2015, and dispositive motion filed on

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December 10, 2015.) Such practice by Mr. Braxton appears to go beyond the specific factual and/or

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legal circumstances of each case and will not be condoned. Such efforts are wasting limited judicial

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resources of the Court and especially the district judges who are severally impacted with civil and

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criminal cases.

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Accordingly, for the foregoing reasons, it is HEREBY ORDERED that:

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Defendants’ motion for modification of the scheduling order and leave to file a motion
for summary judgment is DENIED; and

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2.

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Defendants’ motion for summary judgment filed on January 25, 2016, is DENIED as
untimely.

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IT IS SO ORDERED.

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Dated:

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January 26, 2016
UNITED STATES MAGISTRATE JUDGE

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