Doster v. Beard et al

Filing 59

ORDER GRANTING 57 Motion to Modify Scheduling Order, signed by Magistrate Judge Gary S. Austin on 8/31/17. New Dispositive Motions Deadline: November 30, 2017. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 Plaintiff, 13 14 1:15-cv-01415-DAD-GSA-PC DAMIAN T. DOSTER, ORDER GRANTING MOTION TO MODIFY SCHEDULING ORDER (ECF No. 57.) vs. JEFFREY A. BEARD, et al., 15 New Dispositive Motions Deadline: November 30, 2017 Defendants. 16 17 I. BACKGROUND 18 Damian T. Doster (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds 20 with Plaintiff’s First Amended Complaint filed on March 25, 2016, against defendants, Chief 21 Deputy Warden F. Vasquez, Yard Captain P. Llamas, Sgt. Sarah Leon, and Maintenance 22 Engineer Ric Pavich (collectively, “Defendants”), on Plaintiff’s claims for adverse conditions 23 of confinement under the Eighth Amendment and related negligence claims. (ECF No. 13.) 24 On July 31, 2017, Defendants filed a motion to modify the scheduling order to extend 25 the deadline for filing dispositive motions. (ECF No. 57.) Plaintiff has not filed an opposition. 26 II. MODIFICATION OF SCHEDULING ORDER 27 Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 28 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, 1 1 Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the 2 modification of a scheduling order must generally show that even with the exercise of due 3 diligence, they cannot meet the requirement of the order. Id. The court may also consider the 4 prejudice to the party opposing the modification. Id. If the party seeking to amend the 5 scheduling order fails to show due diligence the inquiry should end and the court should not 6 grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 7 (9th Cir. 2002). 8 Defendants request a four-month extension of the deadline for filing dispositive motions 9 in an effort to allow the court to issue a final ruling on the pending summary judgment motion 10 and, to permit Defendants adequate time to prepare a merits based motion for summary 11 judgment. The current deadline for filing dispositive motions is July 31, 2017, which has 12 expired. (ECF No. 50.) Defendants have provided evidence that even with the exercise of due 13 diligence, they could not and cannot meet the current July 31, 2017, deadline. Therefore, the 14 court finds good cause to grant Defendants’ motion, extending the dispositive motions deadline 15 until November 30, 2017, for all parties to this action. 16 III. CONCLUSION 17 Good cause appearing, IT IS HEREBY ORDERED that: 18 1. 19 20 Defendants’ motion to modify the discovery and scheduling order, filed on July 31, 2017, is GRANTED; and 2. 21 The deadline for filing dispositive motions is extended from July 31, 2017 to November 30, 2017, for all parties to this action. 22 23 24 25 IT IS SO ORDERED. Dated: August 31, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 26 27 28 2

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