(PC) Solano v. Tate et al

Filing 30

ORDER Granting Defendants' #29 Motion to Extend the Time to File a Dispositive Motion signed by Magistrate Judge Stanley A. Boone on 03/01/2017. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LIBRADO SOLANO, JR.,

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Plaintiff,
v.
DR. HAROLD TATE, et al.,
Defendants.

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Case No.: 1:15-cv-00756-SAB (PC)
ORDER GRANTING DEFENDANTS’
MOTION TO EXTEND THE TIME TO FILE
A DISPOSITIVE MOTION
[ECF No. 29]

Plaintiff Librado Solano, Jr. is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
This action is proceeding against Defendants Dr. Tate and Dr. Yin for deliberate indifference
to a serious medical need in violation of the Eighth Amendment to the United States Constitution.
Currently before the Court is Defendants’ motion to modify the scheduling order, filed

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February 28, 2017. Previously, on August 9, 2016, the Court extended the discovery deadline to

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September 16, 2016, and the dispositive motion deadline to December 16, 2016. (ECF No. 25.)

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Defendants submit that on November 9, 2016, the California Attorney General’s Office

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advised the Office of Legal Affairs at the California Department of Corrections and Rehabilitation

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(CDCR) that it could no longer represent Defendants Dr. Tate and Dr. Yin in this matter and new

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counsel would need to be retained. (Jeffrey Decl. ¶ 2.) Pursuant to the procedure in place at CDCR,

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Reily & Jeffrey, Inc. was retained on February 16, 2017 subject to the approval of Dr. Tate and Dr.
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Yin. (Id.) The substitutions of attorney were filed on February 21, 2017. Defendants submit that

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between the time that the Attorney General’s Office determined it could no longer represent Dr. Tate

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and Dr. Yin and the time new defense counsel was retained, the dispositive motion deadline passed.

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Counsel submits that on February 27, 2017, she completed her initial review of the files and consulted

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a medical expert. Counsel concluded a summary judgment motion may dispose of some or all of the

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claims and requests the Court extend the dispositive motion deadline to April 14, 2017.

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Rule 6 of the Federal Rules of Civil Procedure provides that “[w]hen an act … must be done

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within a specified time, the court may, for good cause, extend the time . . . on motion made after the

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time has expired if the party failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1).

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Whether “excusable neglect” will lie requires consideration of four factors: (1) the danger of prejudice

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to the non-moving party; (2) the length of the delay and its potential impact on judicial proceedings;

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(3) the reason for the delay, including whether it was within the reasonable control of the movant; and

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(4) whether the moving party’s conduct was in good faith. Pioneer Inv. Serv. Co. v. Brunswick

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Assocs. Ltd. P’Ship, 507 U.S. 380, 394 (1993). Before Pioneer, the term “excusable neglect” was

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commonly understood to cover only situations beyond an attorney’s control, not negligence on the part

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of counsel. Under Pioneer, “excusable neglect” covers “situations in which the failure to comply with

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a filing deadline is attributable to negligence.” Id. at 395. In this instance, the four factors of Pioneer

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weigh in Defendants’ favor as Plaintiff will not suffer prejudice by an extension of the dispositive

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motion deadline by a few months, the extension of time to was filed promptly after new counsel was

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retained and reviewed the merits of the case, and the record is devoid of any indication that defense

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counsel acted in bad faith. Accordingly, the Court hereby grants Defendants’ request to modify the

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scheduling order, and Defendants have to and including April 14, 2017, to file a dispositive motion.

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IT IS SO ORDERED.

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Dated:

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March 1, 2017
UNITED STATES MAGISTRATE JUDGE

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