Kietty v. Walker et al
Filing
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ORDER DENYING 58 Defendants' Motion to Modify the Scheduling Order and ORDER DENYING 59 Motion for Summary Judgment as Untimely signed by Magistrate Judge Stanley A. Boone on 5/24/2016. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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HUSSEIN ALI KIETTY,
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Plaintiff,
v.
A. WALKER, et al.,
Defendants.
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Case No.: 1:13-cv-00312-DAD-SAB (PC)
ORDER DENYING DEFENDANTS’ MOTION TO
MODIFY THE SCHEDULING ORDER AND
DENYING MOTION SUMMARY JUDGMENT AS
UNTIMELY
[ECF Nos. 58, 59]
Plaintiff Hussein Ali Kietty is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Currently before the Court is Defendants’ motion to modify the scheduling order and leave to
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file a motion for summary judgment, filed May 13, 2016. (ECF No. 58.) On this same date,
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Defendants filed a motion for summary judgment. (ECF No. 59.)
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I.
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PROCEDURAL BACKGROUND
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Plaintiff filed this action on March 5, 2013. After screening the complaint, the Court found
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that Plaintiff stated a cognizable excessive force claim against Defendants Walker, Astorga,
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Deathriage, Brumbagh, Duty, Rumbles, and Silva, and directed service by the United States Marshal
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on March 25, 2014. (ECF Nos. 12, 14.) In the order directing service, the Court inadvertently
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neglected to order service on Defendant Rumbles.
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On May 30, 2014, Defendants Astorga, Brumbagh, Deathriage, Duty, Silva, and Walker filed
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an answer to the complaint. (ECF No. 15.) On June 2, 2014, the Court issued the discovery and
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scheduling order, setting the discovery and dispositive motion deadline for February 2, 2015 and April
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13, 2015, respectively.
On July 17, 2014, Plaintiff moved for leave to file an amended complaint, which was granted
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on August 28, 2014. (ECF Nos. 17, 22.)
On October 7, 2014, the Court screened Plaintiff’s first amended complaint and directed
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Defendants to file a response within thirty days. (ECF No. 27.) On November 5, 2014, Defendants
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filed an answer to the amended complaint, with the exception of the as-of-then unserved Defendant
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Rumbles. (ECF No. 28.)
The dispositive motion deadline expired on April 13, 2015, and no dispositive motion was filed
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by Defendants.
On April 24, 2015, the Court issued an order regarding consent/decline to United States
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magistrate judge jurisdiction, and noted that the dispositive motion had expired and no motion had
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been filed. (ECF No. 34.) The Court also noted that although Plaintiff had filed an amended
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complaint in the interim of the issuance of the discovery and scheduling order, the Court did not issue
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a new discovery and scheduling order and the June 2, 2014, order remained in full force and effect.
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(Id.)
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On July 23, 2015, the Court ordered service on Defendant Rumbles as service had not yet been
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ordered by the Court. (ECF No. 43.) Following service of the first amended complaint, Defendant
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Rumbles filed an answer on October 6, 2015. (ECF No. 46.) On October 7, 2015, the Court issued a
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discovery and scheduling order as to Defendant Rumbles only. (ECF No. 47.)
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On February 1, 2016, Plaintiff moved to dismiss Defendant Rumbles and proceed solely
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against the remaining Defendants. (ECF No. 50.) Defendants filed a statement of non-opposition to
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Plaintiff’s motion to dismiss Defendant Rumbles on March 17, 2016, and Defendant Rumbles was
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dismissed from the action on March 22, 2016. (ECF Nos. 54, 55.)
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On March 31, 2016, the Court set this case for a settlement conference on June 22, 2016, at
10:00 a.m. before Magistrate Judge Barbara A. McAuliffe in Courtroom 8.
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As previously stated, on May 13, 2016, Defendants Astorga, Brumbagh, Deathriage, Duty,
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Silva and Walker filed a motion for modification of the scheduling order and leave to file a motion for
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summary judgment, along with a motion for summary judgment. (ECF Nos. 58, 59.) Although the
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deadline to file an opposition has not yet expired under Local Rule 230(l), because the Court finds that
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Defendants have failed to present good cause to modify the scheduling order, the Court finds that no
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prejudice will result to Plaintiff by ruling on Defendants’ motion prior to such deadline.
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II.
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DISCUSSION
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Defendants contend that they “have been diligent in litigating this matter, in that prior to the
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original April 13, 2015 dispositive motion deadline, defense counsel held a good-faith belief that the
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Court would modify the dispositive motion deadline for all parties following service of the First
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Amended Complaint upon Defendant Rumbles.” (Mot. at 5:21-24, ECF No. 58.)
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As an initial matter and contrary to Defendants’ claim, Defendant Rumbles has been dismissed
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from this action pursuant to Plaintiff’s request and over no objection by Defendant. (ECF Nos. 50, 54,
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55.) Thus, there is no basis to move for summary judgment in favor of Defendant Rumbles. Further,
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Defendants’ arguments for modification of the previous scheduling order are not well-taken. At the
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time the Court allowed Plaintiff to amend the complaint the deadline for filing a dispositive motion
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had not yet expired, and when Defendant Rumbles filed an answer to the complaint the dispositive
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motion deadline had expired eight months prior. The Court does not find “good cause” to modify the
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dispositive motion previously set and now expired over a year ago.
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Even assuming Defendants operated under the belief that the Court would modify the
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dispositive motion deadline following service upon Defendant Rumbles, the Court’s April 24, 2015
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order specifically stated that although Plaintiff had filed an amended complaint in the interim of the
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issuance of the initial discovery and scheduling order, the Court did not issue a new discovery and
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scheduling order and the June 2, 2014, order (setting dispositive deadline for April 13, 2015) remained
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in full force and effect. (ECF No. 35.) In addition, after Defendant Rumbles was served and filed an
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answer to the amended complaint, the Court’s October 7, 2015, subsequent discovery and scheduling
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order specifically applied to Defendant Rumbles only. (ECF No. 47.) Defendants cannot now claim
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in May 2016 (seven months thereafter), that they operated under the mistaken belief that the Court
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would extend the deadline as to all Defendants after Defendant Rumbles was served and answered the
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complaint. (ECF No. 47.)
By waiting until May 2016, well after Defendants clearly had knowledge of the expiration of
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the April 13, 2015, dispositive motion deadline, the Court cannot find good cause to modify the
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scheduling order. Defendants are simply attempting to bootstrap an extension of the dispositive
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motion deadline to the deadlines made applicable to Defendant Rumbles only-who is no longer a party
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to this action. While it is unfortunate that the dispositive motion deadline expired and no dispositive
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motion was filed on behalf of Defendants Brumbaugh, Walker, Silva, Astorga, Deathriage, and Duty,
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such circumstance does not justify an extension of the deadline. Accordingly, Defendants’ motion to
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modify the scheduling order shall be denied, and the motion for summary judgment shall be denied as
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untimely.
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III.
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ORDER
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Based on the foregoing, it is HEREBY ORDERED that:
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Defendants’ motion to modify the scheduling order is DENIED; and
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Defendants’ motion for summary judgment is DENIED as UNTIMELY.
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IT IS SO ORDERED.
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Dated:
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May 24, 2016
UNITED STATES MAGISTRATE JUDGE
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