King v. Biter et al
Filing
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ORDER GRANTING 97 Plaintiff's Ex Parte Application for Extension of Discovery Deadline for Written Discovery signed by Magistrate Judge Stanley A. Boone on 10/16/2019. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LARRY DONNELL KING, SR.,
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Plaintiff,
v.
M.D. BITER, et al.,
Defendants.
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Case No.: 1:15-cv-00414-LJO-SAB (PC)
ORDER GRANTING PLAINTIFF’S EX PARTE
APPLICATION FOR EXTENSION OF
DISCOVERY DEADLINE FOR WRITTEN
DISCOVERY
[ECF No. 97]
Plaintiff Larry Donnell King, Sr. is appearing in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s ex parte application for an extension of the discovery
deadline for written discovery, filed. October 1, 2019.
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I.
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BACKGROUND
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This action is proceeding on Plaintiff’s failure to protect claims against Defendants Tarnoff,
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Acebedo, Castro and Lawless (relating to an attack on October 18, 2011) and against Defendant Biter
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(relating to an attack in January 2014).
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On February 22, 2019, the United States Court of Appeals for the Ninth Circuit reversed and
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remanded this case finding that Plaintiff exhausted his claim that Defendants failed to protect him
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from an attack by another inmate. (ECF No. 84.)
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On April 2, 2019, the Court issued an amended scheduling order setting the deadline for
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completion of all discovery as August 2, 2019, and the deadline for filing dispositive motions as
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October 2, 2019.
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After an unsuccessful settlement conference, the Court amended the scheduling order and
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extended the discovery deadline to October 2, 2019, and the dispositive motion deadline to December
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2, 2019.
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On September 23, 2019, the parties submitted a stipulation to extend the discovery deadline for
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the limited purpose of taking depositions only (without requests for production). The Court approved
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the parties’ stipulation on September 24, 2019, and extended the discovery deadline to March 30,
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2010, and the dispositive motion deadline to June 1, 2010.
As previously stated, on October 1, 2019, Plaintiff filed an ex parte application to extend all
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discovery by a period of 180 days. Defendants filed an opposition on October 4, 2019. Plaintiff did
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not file a reply.
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II.
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DISCUSSION
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Under Rule 16 of the Federal Rules of Civil Procedure, a discovery and scheduling order
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controls the course of litigation unless the Court subsequently alters the original order. Fed R. Civ. P.
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16(d). Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 16(b),
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and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, Inc., 975 F.2d
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604, 609 (9th Cir. 1992). To establish good cause, the party seeking the modification of a scheduling
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order must generally show that even with the exercise of due diligence, they cannot meet the
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requirement of that order. Id. The court may also consider the prejudice to the party opposing the
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modification. Id. If the party seeking to amend the scheduling order fails to show due diligence the
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inquiry should end and the court should not grant the motion to modify. Zivkovic v. Southern
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California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). A party may obtain relief from the
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court’s deadline date for discovery by demonstrating good cause for allowing further discovery. Fed.
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R. Civ. P. 16(b)(4).
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“Good cause may be found to exist where the moving party shows that it diligently assisted the
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court with creating a workable scheduling order, that it is unable to comply with the scheduling
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order’s deadlines due to matters that could not have reasonably been foreseen at the time of the
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issuance of the scheduling order, and that it was diligent in seeking an amendment once it became
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apparent that the party could not comply with the scheduling order.” Kuschner Nationwide Credit,
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Inc., 256 F.R.D. 684, 687 (E.D. Cal. 2009).
Given the procedural posture of this case and on the basis of good cause, Plaintiff’s request
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shall be granted.
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III.
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ORDER
Accordingly, it is HEREBY ORDERED that the discovery deadline previously extended to
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March 30, 2020, may include written discovery and well as the taking of depositions.
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IT IS SO ORDERED.
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Dated:
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October 16, 2019
UNITED STATES MAGISTRATE JUDGE
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