Manago v. Davey et al

Filing 89

ORDER GRANTING Motions to Modify Scheduling Order 86 , 88 ; ORDER EXTENDING Discovery Deadline and Deadline to File Dispositive Motions for All Parties, signed by Magistrate Judge Gary S. Austin on 7/28/17: New Discovery Deadline 10/6/2017; New Dispositive Motions Deadline 12/6/2017. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:16-cv-00399-LJO-GSA-PC

STEWART MANAGO,

ORDER GRANTING MOTIONS TO
MODIFY SCHEDULING ORDER
(ECF Nos. 86, 88.)

vs.
D. DAVEY, et al.,

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ORDER EXTENDING DISCOVERY
DEADLINE AND DEADLINE TO FILE
DISPOSITIVE MOTIONS FOR ALL
PARTIES

Defendants.

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New Discovery Deadline:

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10/06/17

New Dispositive Motions Deadline: 12/06/17

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I.

BACKGROUND

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Stewart Manago (“Plaintiff”) is a former state prisoner proceeding pro se and in forma

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pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the

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Complaint commencing this action on March 24, 2016. (ECF No. 1.) This case now proceeds

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with the First Amended Complaint filed on April 18, 2016, against defendants J. Acevedo, D.

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Davey, A. Maxfield, E. Razo, M.V. Sexton, A. Valdez, and J. Vanderpoel (collectively,

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“Defendants”), on Plaintiff’s First Amendment retaliation claims. (ECF No. 13.)

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On August 9, 2016, the Court issued a Discovery and Scheduling Order establishing

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pretrial deadlines for the parties, including a deadline of January 6, 2017, for the parties to
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complete discovery, including the filing of motions to compel, and a deadline of March 7,

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2017, for the filing of pretrial dispositive motions. (ECF No. 45.) On December 9, 2016, the

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court issued an order extending the discovery deadline to March 7, 2017, and the dispositive

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motions deadline to May 6, 2017. (ECF No. 70.) On May 22, 2017, the court issued an order

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extending the discovery deadline to July 7, 2017, and the dispositive motions deadline to

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September 8, 2017. (ECF No. 85.)

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On June 9, 2017, and July 12, 2017, Defendants filed motions to modify the scheduling

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order to extend the deadlines. (ECF Nos. 86, 88.)

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II.

MOTION TO MODIFY SCHEDULING ORDER

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

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

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

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

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

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

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scheduling order fails to show due diligence the inquiry should end and the Court should not

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grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087

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(9th Cir. 2002).

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In their first motion (ECF No. 86), Defendants request a sixty-day extension of the

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discovery deadline from July 7, 2017, to September 5, 2017, and a sixty-day extension of the

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dispositive motions deadline from September 8, 2017, to November 7, 2017. In their second

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motion (ECF No. 88), Defendants request extensions of the same deadlines until sixty days

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from the date the court rules on Defendants’ motion to compel filed concurrently with the

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second motion. Defendants seek additional time to conduct further discovery, to schedule and

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take Plaintiff’s deposition, and, if necessary, file another motion to compel.

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Defense counsel has filed a declaration dated July 12, 2017, in which she sets forth

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Defendants’ diligence in attending to the matters in this case. (ECF No. 88-1.) The court finds

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that Defendants have shown that even with the exercise of due diligence they cannot meet the
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deadlines established in the court’s Discovery and Scheduling Order. Therefore, the court finds

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good cause to extend the outstanding deadlines for all parties to this action. Plaintiff has not

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opposed Defendants’ motions to modify the scheduling order.

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Good cause appearing, the discovery deadline shall be extended to October 6, 2017, for

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all parties to this action, and the dispositive motions deadlines shall be extended to December

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6, 2017, for all parties to this action.1 Any further requests for extension of deadlines should be

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filed before the expiration of the existing deadlines.

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III.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that:
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Defendants’ motions to modify the Court’s Discovery and Scheduling Order,
filed on June 9, 2017, and July 12, 2017, are GRANTED;

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The deadline for the completion of discovery, including the filing of motions to

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compel, is extended from July 7, 2017, to October 6, 2017, for all parties to this

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action;

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3.

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The deadline for filing and serving pretrial dispositive motions is extended from
September 8, 2017, to December 6, 2017, for all parties to this action; and

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All other provisions of the Court’s August 9, 2016, Discovery and Scheduling
Order remain the same.

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IT IS SO ORDERED.
Dated:

July 28, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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The court prefers not to set deadlines conditioned on future events.
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