Mannings v. Palermo et al

Filing 28

ORDER GRANTING Defendants' 24 Motion to Modify Scheduling Order; ORDER EXTENDING Dispositive Motions Deadline For All Parties to This Action, signed by Magistrate Judge Gary S. Austin on 4/9/2015. New Dispositive Motions Deadline: 6/8/2015. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ORDER GRANTING DEFENDANTS’
MOTION TO MODIFY SCHEDULING
ORDER
(Doc. 24.)

Plaintiff,

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1:12-cv-02038-AWI-GSA-PC

DEVON DION MANNINGS,

vs.
C/O PALERMO, et al.,

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ORDER EXTENDING DISPOSITIVE
MOTIONS DEADLINE FOR ALL PARTIES
TO THIS ACTION

Defendants.

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New Dispositive Motions Deadline: 06/08/15

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I.

BACKGROUND

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Devon Dion Mannings (“Plaintiff”) is a state prisoner proceeding pro se with this civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this

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action at the United States District Court for the Southern District of California on December 6,

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2012. (Doc. 1.) The case was transferred to the Eastern District of California on December 13,

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2012. (Doc. 4.) This action now proceeds with the original Complaint, against defendants

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Palermo, Smith, and Tyler (“Defendants”) for use of excessive force in violation of the Eighth

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Amendment.1

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On February 27, 2014, the court issued an order dismissing all other claims and defendants from this action, based
on Plaintiff’s failure to state a claim under § 1983. (Doc. 12.)

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On May 29, 2014, the court issued a Scheduling Order establishing pretrial deadlines

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for the parties, including a deadline of April 9, 2015 to file pretrial dispositive motions. (Doc.

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17.) On April 8, 2015, defendants Palermo and Tyler filed a motion to extend the dispositive

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motions deadline. (Doc. 24.) On April 8, 2015, defendant Smith filed a joinder to the motion.

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(Doc. 27.)

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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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Defendants seek an extension of the dispositive motions deadline for this case.

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Defendants assert that they have diligently attempted to complete all the work in preparation of

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filing a dispositive motion, but due to the complexities of the case, defense counsel’s other

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obligations, and the need to substitute new counsel for defendant Smith, they will be unable to

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meet the April 9, 2015 deadline.

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The court finds good cause to extend the dispositive motions deadline in this action

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until June 8, 2015. Thus, good cause appearing, Defendants’ motion to modify the Scheduling

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Order shall 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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Defendants’ motion to modify the Court's Scheduling Order, filed on April 8,
2015, is GRANTED;
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The deadline for filing and serving pretrial dispositive motions is extended from
April 9, 2015 to June 8, 2015 for all parties to this action; and

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All other provisions of the court's May 29, 2014 Scheduling Order remain the
same.

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IT IS SO ORDERED.
Dated:

April 9, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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