Kenya Darrick Caldwell v. City of Selma et al

Filing 63

ORDER GRANTING 58 DEFENDANT'S MOTION TO AMEND SCHEDULING ORDER and VACATING pending dates. The Motion to Withdraw as Attorney set for hearing on 12/10/2014 shall remain on calendar. Signed by Magistrate Judge Stanley A. Boone on 12/1/2014. (Hernandez, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

KENYA DARRICK CALDWELL,

14
15

ORDER GRANTING DEFENDANTS’
MOTION TO AMEND THE SCHEDULING
ORDER

Plaintiff,

12
13

Case No. 1:13-cv-00465-SAB

v.
CITY OF SELMA, et al.,

(ECF No. 58)

Defendants.

16
17

On August 29, 2014, an order was filed granting partial summary judgment in this action.

18 On this same date, an order issued granting the parties’ stipulation for Plaintiff to undergo an
19 independent psychological examination.

On September 3, 2014 an amended order issued

20 granting Defendants’ motion for partial summary judgment.
21

On October 30, 2014, Plaintiff’s counsel filed a motion to withdraw as attorney, which is

22 set for hearing on December 10, 2014. On November 5, 2014, Defendants filed a motion to
23 amend the scheduling order. An informal teleconference was held on December 1, 2014 to
24 address the motion to amend the scheduling order. Counsel M. Greg Mullanax appeared for
25 Plaintiff and counsel David M. Overstreet and Rachelle Taylor Golden appeared for Defendants.
26

Following the order granting partial summary judgment in this action, the parties entered

27 into an agreement to settle the outstanding claims in this action for a waiver of fees and costs.
28 Subsequently, Plaintiff’s counsel informed Defendant on October 29, 2014, that he would no

1

1 longer be representing Plaintiff. Defendants seek an amendment of the scheduling order to bring
2 a second motion for summary judgment on the remaining claims and to reschedule the
3 independent psychological examination.
4

Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P.

5 16(b), and good cause requires a showing of due diligence, Zivkovic v. Southern California
6 Edison Co., 302 F.3d 1080, 1087-88 (9th Cir. 2002).

Defendants were informed that the

7 settlement would not be consummated on October 29, 2014, and filed the instant motion on
8 November 5, 2014.

Based upon Plaintiff’s decision not to consummate the settlement

9 agreement, good cause exists to allow the amendment of the scheduling order to allow a second
10 motion for summary judgment. Therefore, the Court will grant Defendants’ motion to amend the
11 scheduling order.
12

Defendants seek an order rescheduling the independent psychological examination,

13 Plaintiff shall be ordered to file an opposition or statement of opposition to the request for an
14 independent psychological examination on or before December 8, 2014. The Court will consider
15 this request with the motion to withdraw as Plaintiff’s attorney set for December 10, 2014 at
16 10:00 a.m.
17

Defendants also seek amendment of the order granting partial summary judgment of the

18 privacy claims to include any claims raised under the Ninth Amendment. Defendants only
19 addressed the Fourth Amendment claims in their motion for summary judgment.

Neither

20 Defendants nor Plaintiff briefed whether a privacy claim exists under the Ninth Amendment or
21 the merits of such a claim. Since Defendants did not move for summary judgment on the Ninth
22 Amendment claim, the Court denies the request to amend the order on the motion for summary
23 judgment.
24

Accordingly, IT IS HEREBY ORDERED that:

25

1.

summary judgment is GRANTED;

26
27
28

Defendants motion to amend the scheduling order to allow a second motion for

2.

Defendants shall file a motion for summary judgment on all remaining claims on
or before February 6, 2015;

2

3.

1

Defendants’ request to amend the order granting partial motion for summary
judgment is DENIED;

2
4.

3

Plaintiff shall file an opposition or statement of non-opposition to the request for
an independent psychological examination on or before December 8, 2014;

4
5

5.

All pending dates in this action are vacated; and

6

6.

The Court shall set future dates as necessary following the order on Defendants’
motion for summary judgment.

7
8
9

IT IS SO ORDERED.

10 Dated:

December 1, 2014
UNITED STATES MAGISTRATE JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3