Gray v. Johnson et al
Filing
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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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