McClure v. Chen, et al.

Filing 76

ORDER granting Defendants' Motion to extend Discovery Deadline for limited purpose 75 ; New Deadline for Defendants to file Motion to Compel: January 28, 2019 signed by Magistrate Judge Gary S. Austin on 1/18/2019. (Lundstrom, T)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

GEORGE MCCLURE,

12

Plaintiff,

13

v.

14

1:14-cv-00932-DAD-GSA-PC
ORDER GRANTING DEFENDANTS’ MOTION
TO EXTEND DISCOVERY DEADLINE FOR
LIMITED PURPOSE
(ECF No. 75.)

C. K. CHEN, et al.,

15

Defendants.

NEW DEADLINE FOR DEFENDANTS TO FILE
MOTION TO COMPEL: JANUARY 28, 2019

16
17
18

I.

BACKGROUND

19

George McClure (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

20

with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s

21

First Amended Complaint filed on February 9, 2015, on Plaintiff’s medical claim under the

22

Eighth Amendment against defendants C. K. Chen (M.D.) and C. Horton (Physician’s Assistant)

23

(collectively, “Defendants”). (ECF No. 12.)

24

On January 29, 2016, the court issued a discovery and scheduling order setting out

25

deadlines for the parties, including a deadline of July 1, 2016 to complete discovery, including

26

the filing of motions to compel. (ECF No. 22.) On May 11, 2016, the court stayed discovery

27

pending resolution of Defendants’ first motion for summary judgment. (ECF No. 36.) On March

28

28, 2017, the court denied Defendants’ first motion for summary judgment (ECF No. 46.) On
1

1

September 14, 2018, the court lifted the stay of discovery and issued a new discovery and

2

scheduling order setting a new discovery deadline of January 14, 2019. (ECF No. 70.)

3

On January 14, 2019, Defendants filed a motion to modify the discovery and scheduling

4

order. (ECF No. 75.)

5

II.

MOTION TO MODIFY SCHEDULING ORDER

6

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

7

16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations,

8

Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the

9

modification of a scheduling order must generally show that even with the exercise of due

10

diligence, they cannot meet the requirement of the order. Id. The court may also consider the

11

prejudice to the party opposing the modification. Id. If the party seeking to amend the scheduling

12

order fails to show due diligence the inquiry should end and the court should not grant the motion

13

to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002).

14

Defendants request an extension of the discovery deadline from January 14, 2019, to

15

January 28, 2019, to file a motion to compel. Defendants explain that they met with Plaintiff at

16

Plaintiff’s deposition on December 12, 2018, and agreed that Plaintiff would provide amended

17

responses to Defendants’ entire Request for Production, Set One, and Interrogatories No. 3, 4, 5,

18

6, and 8, by December 24, 2018. (Mohmoud Decl., Ex. A.) Defendants have not received these

19

amended responses. (Mohmoud Decl., ¶ 3.) Defense counsel contacted Plaintiff on January 14,

20

2019, and informed him that the amended responses had not been received. (Mohmoud Decl., ¶

21

4.) Plaintiff assured defense counsel that he had sent the amended discovery responses and now

22

the parties are in the process of exchanging the amended responses at issue in a final attempt to

23

avoid a motion to compel. (Mohmoud Decl., ¶ 4.) Plaintiff has agreed to search for any copies

24

he made of his amended responses and send them to defense counsel this week. (Mohmoud

25

Decl., ¶ 4.) In light of these circumstances, Defendants have requested that the court extend the

26

discovery deadline to allow Defendants time to file a motion to compel.

27

The court finds that Defendants have shown that even with the exercise of due diligence

28

they cannot meet the court’s discovery deadline of January 14, 2019. Therefore, good cause
2

1

appearing, the discovery deadline shall be extended to January 28, 2019, to allow Defendants

2

time to file a motion to compel. Any further requests for extension of deadlines should be filed

3

before the expiration of the existing deadlines.

4

III.

CONCLUSION

5

Based on the foregoing, IT IS HEREBY ORDERED that:

6

1.

7
8

court’s September 14, 2018, discovery and scheduling order, is GRANTED;
2.

9

The deadline for the completion of discovery, including the filing of motions to
compel, is extended from January 14, 2019 to January 28, 2019, for the limited

10
11

Good cause appearing, Defendants’ January 14, 2019, motion to modify the

purpose of allowing time for Defendants to file a motion to compel; and
3.

12

All other provisions of the court’s September 14, 2018, discovery and scheduling
order remain the same.

13
14
15
16

IT IS SO ORDERED.
Dated:

January 18, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
3