Johnson v. Sisodia, et al.
Filing
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ORDER To SHOW CAUSE Why Defendants' Request For Extension Of Time Nunc Pro Tunc Should Not Be Denied (ECF No. 56 ), signed by Magistrate Judge Stanley A. Boone on 9/17/2015. Show Cause Response due by 9/28/2015.(Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ANTHONY JOHNSON,
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Plaintiff,
v.
DR. SISODIA, et al.,
Defendants.
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Case No.: 1:12-cv-02044-SAB (PC)
ORDER TO SHOW CAUSE WHY DEFENDANTS’
REQUEST FOR EXTENSION OF TIME NUNC
PRO TUNC SHOULD NOT BE DENIED
[ECF No. 56]
Plaintiff Anthony Johnson is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
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On September 1, 2015, Defendants filed a motion for extension of time nunc pro tunc, up to
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and including August 14, 2015, to file a motion for summary judgment. (ECF No. 56.) Defendants
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filed their motion for summary judgment on August 14, 2015, and as an attachment filed the present
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motion for extension of time. The motion was re-filed properly on September 1, 2015.
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I.
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DISCUSSION
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The Court’s May 16, 2014, discovery and scheduling order required that dispositive motions
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be filed on or before March 26, 2015. (ECF No. 24.) The deadline was subsequently extended to
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April 22, 2015. (ECF No. 42.) Despite the April 22, 2015, extended deadline, no dispositive motions
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were filed by the deadline.
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Deputy Attorney General, Gabriel Ullrich, submits that beginning on June 22, 2015, Deputy
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Attorney General Kelli Hammond (previous counsel in this case) went out on medical leave due to
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health concerns, and was not expected to return until August 31, 2015. (ECF No. 56, Decl. of Gabriel
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Ullrich ¶ 2.) Counsel further submits that “[i]n light of Deputy Hammond’s absence, on
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approximately June 25, 2015, this matter was reassigned to me. Upon reassignment, I immediately
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reviewed and evaluated the file. In doing so, I realized that Defendants have not filed a motion for
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summary judgment. Moreover, I determined that this matter could likely be dispensed with, or
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significantly narrowed by, a motion for summary judgment. Due to Deputy Hammond’s continued
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absence, I cannot question her about why a motion for summary judgment was not filed by the
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dispositive motion deadline.” (Id. ¶ 3.)
Based on the representations by Mr. Ullrich in the present motion for an extension of time, the
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Court cannot determine the basis of good cause and whether due diligence was exercised in attempting
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to meet the initial deadline and whether due diligence was exercised after the action was reassigned.
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See Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087-1088 (9th Cir. 2002)
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(modification of a scheduling order requires a showing of good cause, and good cause requires a
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showing of due diligence).
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Accordingly, within seven (7) calendar days from the date of service of this order, Defendants
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shall show cause why the motion for extension of time should not be denied, and within fourteen (14)
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days after the date Defendants file their response, Plaintiff may file a reply.
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IT IS SO ORDERED.
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Dated:
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September 17, 2015
UNITED STATES MAGISTRATE JUDGE
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