Smith v. Garcia

Filing 23

ORDER GRANTING 22 Motion to Modify Scheduling Order; ORDER EXTENDING Discovery for Limited Purpose Described in this Order; ORDER EXTENDING Dispositive Motions Deadline for all Parties to this Action signed by Magistrate Judge Gary S. Austin on 2/4/2015. New Discovery Cut-Off Date: 3/18/2015; New Dispositive Motions Deadline: 5/27/2015. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAVON’Z SMITH,

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Plaintiff,

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1:13-cv-02003-AWI-GSA-PC
ORDER GRANTING MOTION TO
MODIFY SCHEDULING ORDER
(Doc. 22.)

vs.
M. GARCIA,

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ORDER EXTENDING DISCOVERY FOR
LIMITED PURPOSE DESCRIBED IN THIS
ORDER

Defendant.

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ORDER EXTENDING DISPOSITIVE
MOTIONS DEADLINE FOR ALL PARTIES
TO THIS ACTION

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New Discovery Cut-Off Date:

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New Dispositive Motions Deadline: 05/27/2015

03/18/2015

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I.

BACKGROUND

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Plaintiff is a prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C.

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' 1983. This case now proceeds on Plaintiff’s original Complaint filed on December 6, 2013,

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against defendant Sergeant M. Garcia (“Defendant”) for use of excessive force in violation of

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the Eighth Amendment. (Doc. 1.)

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On June 18, 2014, the court issued a Scheduling Order establishing deadlines of

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February 18, 2015 for completion of discovery, and April 27, 2015 for the parties to file pretrial

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dispositive motions. (Doc. 14.) On January 30, 2015, Defendant filed an ex parte motion to

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modify the Scheduling Order. (Doc. 22.)

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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). A party may obtain relief from the court=s deadline date for discovery by

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demonstrating good cause for allowing further discovery. Fed. R. Civ. P. 16(b)(4).

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Defendant requests a thirty-day extension of the discovery deadline for the limited

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purpose of taking Plaintiff’s deposition. Defendant asserts that she scheduled the deposition for

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February 2, 2015, and sent notice of the deposition on January 8, 2015. (Declaration of Hixton,

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Doc. 22-1 ¶3.) Defendant received notice on January 30, 2015, that the video conference

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equipment at the Correctional Training Facility (CTF) is not operable. (Id.)

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unable to travel to CTF without more notice and planning, and does not believe a thirty-day

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extension will prejudice Plaintiff. (Id.)

Defendant is

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The Court finds good cause to extend the discovery deadline in this action for thirty

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days, for the limited purpose of Defendant taking Plaintiff’s deposition. The Court also finds

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good cause to extend the dispositive motions deadline for all parties.

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appearing, Defendant’s motion to modify the Scheduling Order shall be granted.

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III.

Thus, good cause

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Defendant’s ex parte motion to modify the court's Scheduling Order, filed on
January 30, 2015, is GRANTED;
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The deadline for the completion of discovery is extended from February 18,

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2015 to March 18, 2015 for the limited purpose of Defendant taking Plaintiff’s

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deposition;

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3.

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The deadline for filing and serving pretrial dispositive motions is extended from
April 27, 2015 to May 27, 2015 for all parties to this action; and

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All other provisions of the court's June 18, 2014 Scheduling Order remain the
same.

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IT IS SO ORDERED.
Dated:

February 4, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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