Gray v. Johnson et al

Filing 148

ORDER GRANTING 137 Motion to Modify Scheduling Order; ORDER EXTENDING Discovery Deadline and Deadline to File Dispositive Motions for All Parties, signed by Magistrate Judge Gary S. Austin on 11/21/16. New Discovery Deadline: January 31, 2017; New Dispositive Motions Deadline: March 31, 2017. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:13-cv-01473-DAD-GSA-PC

DANA GRAY,

ORDER GRANTING MOTION TO
MODIFY SCHEDULING ORDER
(ECF No. 137.)

vs.
ROMERO, et al.,

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ORDER EXTENDING DISCOVERY
DEADLINE AND DEADLINE TO FILE
DISPOSITIVE MOTIONS FOR ALL
PARTIES

Defendants.

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New Discovery Deadline:

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New Dispositive Motions Deadline: March 31, 2017

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January 31, 2017

I.

BACKGROUND
Dana Gray (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action
This case now proceeds on Plaintiff’s Fourth Amended

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pursuant to 42 U.S.C. ' 1983.

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Complaint filed on September 21, 2015, against defendants Dr. V. Romero, Dr. A. Comelli,

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FNP N. Loadholt, Dr. C. Rebel, John Ziomek, DPM, and Dr. V. Mundunuri, on Plaintiff’s

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medical claim under the Eighth Amendment. (ECF No. 45.)

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Pursuant to the Court’s order issued on July 22, 2016, the current discovery deadline is

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October 31, 2016, and the current deadline for filing dispositive motions is December 28, 2016.

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(ECF No. 106.) On October 25, 2016, Defendants Romero, Mundunuri, Comelli, Loadholt,

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and Ziomek filed a motion to extend the discovery deadline until January 31, 2017, and the
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dispositive motions deadline until March 31, 2017. (ECF No. 137.) On October 26, 2016,

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Defendant Rebel joined in the motion. (ECF No. 139.) Plaintiff has not filed an opposition.

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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).

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Defendants argue that good cause exists to extend the deadlines because Plaintiff’s

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motion to amend her complaint, filed on September 30, 2016, is pending and has effectively

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stayed moving forward with discovery. (Feser Decl. ¶4.) Defense counsel asserts that he

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requires additional time to confer with each of the five defendants he represents. (Feser Decl.

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¶5.) Further, defense counsel will be out of town on vacation from November 18 to 28 and

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December 16 to January 3, and will not be able to respond expeditiously to the changes

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Plaintiff’s pending motion to amend may generate. (Feser Decl. ¶7.)

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The Court finds good cause to extend the current deadlines for discovery and for filing

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dispositive motions, for all parties to this action. Defense counsel has provided evidence that

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he has been diligent in litigating this action, but was unable to meet the Court’s deadlines.

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Plaintiff has not opposed the motion. Therefore, 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 October
25, 2016, is GRANTED;
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2.

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The deadline for the completion of discovery is extended from October 31, 2016
to January 31, 2017 for all parties to this action; and

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The deadline for filing and serving pretrial dispositive motions is extended from
December 28, 2016 to March 31, 2017 for all parties to this action.

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IT IS SO ORDERED.
Dated:

November 21, 2016

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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