Villescas v. Dotson et al

Filing 42

ORDER DENYING Plaintiff's Third Motion to Extend the Time for Discovery and Filing of Dispositive Motion Deadlines 39 , 40 , 41 , signed by Magistrate Judge Stanley A. Boone on 5/27/15. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALBERTO VILLESCAS,

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Plaintiff,

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v.
M.T. DOTSON, et al.,

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Defendants.

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Case No.: 1:12-cv-02068-LJO-SAB (PC)
ORDER DENYING PLAINTIFF’S THIRD
MOTION TO EXTEND THE TIME FOR
DISCOVERY AND FILING OF DISPOSITIVE
MOTION DEADLINES
[ECF Nos. 39, 40, 41 ]

Plaintiff Alberto Villescas is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983.

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I.

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PROCEDURAL BACKGROUND

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Now pending before the Court is Plaintiff’s third motion to extend the time to conduct

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discovery and file a dispositive motion, filed April 21, 2015. (ECF No. 39.) On May 8, 2015,

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Defendants filed an opposition to Plaintiff’s motion. (ECF No. 40.) Plaintiff filed a reply on May 22,

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2015, titled a “motion for hearing of response to defense opposition to extension of time.” (ECF No.

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41.)

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Pursuant to the Court’s discovery and scheduling order issued April 25, 2014, the Court set a

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deadline for the completion of all discovery by December 25, 2014-eight months after issuance of the

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order. (ECF No. 22.)
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On October 31, 2014, Plaintiff filed a motion to extend the discovery deadline. Defendants did

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not oppose the motion, and the motion was granted extending the deadline for discovery to March 5,

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2015. (ECF Nos. 26, 29.)

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Plaintiff filed a second motion to extend the discovery deadline on January 29, 2015.

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Defendants did not oppose the motion, and the motion was granted extending the discovery deadline

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to May 5, 2015, and the dispositive motion deadline to July 5, 2015. (ECF Nos. 35, 36, 37.)

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II.

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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.

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16(b)(4). AThe schedule may be modified >if it cannot reasonably be met despite the diligence of the

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party seeking the extension.=@ Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th

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Cir. 2002) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992)). AIf

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the party seeking the modification >was not diligent, the inquiry should end= and the motion to modify

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should not be granted.@ Id.

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Defendants submit that during the first extension of the discovery deadline (to March 5, 2015),

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defense counsel took Plaintiff’s deposition by videoconference and propounded interrogatories and

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production requests on Plaintiff, and on January 30, 2015, they served their responses to Plaintiff’s

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first set of discovery. (Decl. of Delgado ¶¶ 5, 6.) However, during this time period, Plaintiff did not

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conduct any of his own additional discovery. (Id. ¶ 9.)

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During the second extension of the discovery deadline (to May 5, 2015), Plaintiff served his

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responses to Defendants’ interrogatories and production request, but again Plaintiff did not conduct

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any of his own additional discovery during this second two-month extension. (Decl. of Delgado ¶ 9.)

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Plaintiff submits eight reasons to extend the discovery cut off by “at least 90 days to and

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including the date of August 5, 2015 for discovery.” (ECF No. 39.) The facts provided by Plaintiff in

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his third motion do not constitute good cause. Plaintiff’s vague reference to carpal-tunnel syndrome

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and pressure sores is insufficient to explain his delay and does not justify good cause for a further

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extension. Plaintiff fails to explain his lack of discovery activity during the first two extensions of

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time. To the contrary, Plaintiff attaches a letter dated April 1, 2015, in which Plaintiff complains
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about discovery responses that were received on January 30, 2015. (ECF No. 39; Decl. of Delgado ¶

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6.) Even assuming any of the responses were deficient, Plaintiff fails to explain why it has taken him

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over three months to try to resolve the matter, or why he has been unable to propound his own

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discovery during this period of time.
To the extent Plaintiff contends that a further extension is needed so that he can reply to

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Defendants’ discovery requests, this is not a basis for modifying the scheduling order. Plaintiff has

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already served his responses to Defendants’ production requests (Id. ¶¶ 7, 8), and Defendants have not

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moved to compel additional responses. Plaintiff is under an ongoing duty to supplement his responses

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if and when he receives any additional responsive documents, but an extension of time is not

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warranted on this basis.1
Given that Plaintiff has now had over a year to conduct discovery, and the Court has

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previously extended the discovery deadline twice, the Court finds that Plaintiff has had ample

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opportunity to undertake discovery and he has not demonstrated good cause for a third extension.

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Accordingly, Plaintiff’s request is HEREBY DENIED.

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IT IS SO ORDERED.

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Dated:

May 27, 2015
UNITED STATES MAGISTRATE JUDGE

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Indeed, the duty to supplement responses continues automatically beyond the discovery cutoff date. Fed. R. Civ. P.
26(e); see also F.T.C. v. AMG Services, Inc., No. 2:12-cv-00536-GMN-VCF, 2014 WL 317781, at *6 (D. Nev. Jan. 28,
2014) (“The duty to supplement extends to … the period after the close of discovery.”) (citing Star Direct Telecom, Inc. v.
Global Crossing Bandwidth, Inc., 272 F.R.D. 350, 358 (W.D.N.Y. 2011) (“[T]he duty to supplement continues even
following the close of discovery.”))).

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