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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 Plaintiff, 13 14 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., 15 ORDER EXTENDING DISCOVERY DEADLINE AND DEADLINE TO FILE DISPOSITIVE MOTIONS FOR ALL PARTIES Defendants. 16 New Discovery Deadline: 17 10/06/17 New Dispositive Motions Deadline: 12/06/17 18 19 20 I. BACKGROUND 21 Stewart Manago (“Plaintiff”) is a former state prisoner proceeding pro se and in forma 22 pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the 23 Complaint commencing this action on March 24, 2016. (ECF No. 1.) This case now proceeds 24 with the First Amended Complaint filed on April 18, 2016, against defendants J. Acevedo, D. 25 Davey, A. Maxfield, E. Razo, M.V. Sexton, A. Valdez, and J. Vanderpoel (collectively, 26 “Defendants”), on Plaintiff’s First Amendment retaliation claims. (ECF No. 13.) 27 On August 9, 2016, the Court issued a Discovery and Scheduling Order establishing 28 pretrial deadlines for the parties, including a deadline of January 6, 2017, for the parties to 1 1 complete discovery, including the filing of motions to compel, and a deadline of March 7, 2 2017, for the filing of pretrial dispositive motions. (ECF No. 45.) On December 9, 2016, the 3 court issued an order extending the discovery deadline to March 7, 2017, and the dispositive 4 motions deadline to May 6, 2017. (ECF No. 70.) On May 22, 2017, the court issued an order 5 extending the discovery deadline to July 7, 2017, and the dispositive motions deadline to 6 September 8, 2017. (ECF No. 85.) 7 On June 9, 2017, and July 12, 2017, Defendants filed motions to modify the scheduling 8 order to extend the deadlines. (ECF Nos. 86, 88.) 9 II. MOTION TO MODIFY SCHEDULING ORDER 10 Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 11 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, 12 Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the 13 modification of a scheduling order must generally show that even with the exercise of due 14 diligence, they cannot meet the requirement of the order. Id. The Court may also consider the 15 prejudice to the party opposing the modification. Id. If the party seeking to amend the 16 scheduling order fails to show due diligence the inquiry should end and the Court should not 17 grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 18 (9th Cir. 2002). 19 In their first motion (ECF No. 86), Defendants request a sixty-day extension of the 20 discovery deadline from July 7, 2017, to September 5, 2017, and a sixty-day extension of the 21 dispositive motions deadline from September 8, 2017, to November 7, 2017. In their second 22 motion (ECF No. 88), Defendants request extensions of the same deadlines until sixty days 23 from the date the court rules on Defendants’ motion to compel filed concurrently with the 24 second motion. Defendants seek additional time to conduct further discovery, to schedule and 25 take Plaintiff’s deposition, and, if necessary, file another motion to compel. 26 Defense counsel has filed a declaration dated July 12, 2017, in which she sets forth 27 Defendants’ diligence in attending to the matters in this case. (ECF No. 88-1.) The court finds 28 that Defendants have shown that even with the exercise of due diligence they cannot meet the 2 1 deadlines established in the court’s Discovery and Scheduling Order. Therefore, the court finds 2 good cause to extend the outstanding deadlines for all parties to this action. Plaintiff has not 3 opposed Defendants’ motions to modify the scheduling order. 4 Good cause appearing, the discovery deadline shall be extended to October 6, 2017, for 5 all parties to this action, and the dispositive motions deadlines shall be extended to December 6 6, 2017, for all parties to this action.1 Any further requests for extension of deadlines should be 7 filed before the expiration of the existing deadlines. 8 III. 9 10 CONCLUSION Based on the foregoing, IT IS HEREBY ORDERED that: 1. 11 12 Defendants’ motions to modify the Court’s Discovery and Scheduling Order, filed on June 9, 2017, and July 12, 2017, are GRANTED; 2. The deadline for the completion of discovery, including the filing of motions to 13 compel, is extended from July 7, 2017, to October 6, 2017, for all parties to this 14 action; 15 3. 16 17 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 4. 18 All other provisions of the Court’s August 9, 2016, Discovery and Scheduling Order remain the same. 19 20 21 IT IS SO ORDERED. Dated: July 28, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 1 The court prefers not to set deadlines conditioned on future events. 3

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