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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAVON’Z SMITH, 12 Plaintiff, 13 14 1:13-cv-02003-AWI-GSA-PC ORDER GRANTING MOTION TO MODIFY SCHEDULING ORDER (Doc. 22.) vs. M. GARCIA, 15 ORDER EXTENDING DISCOVERY FOR LIMITED PURPOSE DESCRIBED IN THIS ORDER Defendant. 16 17 ORDER EXTENDING DISPOSITIVE MOTIONS DEADLINE FOR ALL PARTIES TO THIS ACTION 18 New Discovery Cut-Off Date: 19 New Dispositive Motions Deadline: 05/27/2015 03/18/2015 20 21 I. BACKGROUND 22 Plaintiff is a prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. 23 ' 1983. This case now proceeds on Plaintiff’s original Complaint filed on December 6, 2013, 24 against defendant Sergeant M. Garcia (“Defendant”) for use of excessive force in violation of 25 the Eighth Amendment. (Doc. 1.) 26 On June 18, 2014, the court issued a Scheduling Order establishing deadlines of 27 February 18, 2015 for completion of discovery, and April 27, 2015 for the parties to file pretrial 28 1 1 dispositive motions. (Doc. 14.) On January 30, 2015, Defendant filed an ex parte motion to 2 modify the Scheduling Order. (Doc. 22.) 3 II. MOTION TO MODIFY SCHEDULING ORDER 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, Johnson v. Mammoth Recreations, 6 Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the 7 modification of a scheduling order must generally show that even with the exercise of due 8 diligence, they cannot meet the requirement of the order. Id. The court may also consider the 9 prejudice to the party opposing the modification. Id. If the party seeking to amend the 10 scheduling order fails to show due diligence the inquiry should end and the court should not 11 grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 12 (9th Cir. 2002). A party may obtain relief from the court=s deadline date for discovery by 13 demonstrating good cause for allowing further discovery. Fed. R. Civ. P. 16(b)(4). 14 Defendant requests a thirty-day extension of the discovery deadline for the limited 15 purpose of taking Plaintiff’s deposition. Defendant asserts that she scheduled the deposition for 16 February 2, 2015, and sent notice of the deposition on January 8, 2015. (Declaration of Hixton, 17 Doc. 22-1 ¶3.) Defendant received notice on January 30, 2015, that the video conference 18 equipment at the Correctional Training Facility (CTF) is not operable. (Id.) 19 unable to travel to CTF without more notice and planning, and does not believe a thirty-day 20 extension will prejudice Plaintiff. (Id.) Defendant is 21 The Court finds good cause to extend the discovery deadline in this action for thirty 22 days, for the limited purpose of Defendant taking Plaintiff’s deposition. The Court also finds 23 good cause to extend the dispositive motions deadline for all parties. 24 appearing, Defendant’s motion to modify the Scheduling Order shall be granted. 25 III. Thus, good cause CONCLUSION 26 Based on the foregoing, IT IS HEREBY ORDERED that: 27 1. 28 Defendant’s ex parte motion to modify the court's Scheduling Order, filed on January 30, 2015, is GRANTED; 2 1 2. The deadline for the completion of discovery is extended from February 18, 2 2015 to March 18, 2015 for the limited purpose of Defendant taking Plaintiff’s 3 deposition; 4 3. 5 6 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 4. 7 All other provisions of the court's June 18, 2014 Scheduling Order remain the same. 8 9 10 11 IT IS SO ORDERED. Dated: February 4, 2015 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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