Timberland v. Mascarenas et al

Filing 53

ORDER GRANTING Defendant, Mascarenas's Motion to modify Scheduling Order 49 ; extending Dispositive Motions deadline nunc pro tunc to 1/6/2020; deeming Defendants Motion for Summary Judgment timely filed on 1/6/2020 signed by Magistrate Judge Gary S. Austin on 1/9/2020. (Lundstrom, T)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

RONALD TIMBERLAND,

12

Plaintiff,

13
14

vs.
G. MASCARENAS, et al.,

15

Defendants.

16

1:16-cv-00922-LJO-GSA-PC
ORDER GRANTING DEFENDANT
MASCARENAS’S MOTION TO MODIFY
SCHEDULING ORDER
(ECF No. 49.)
ORDER EXTENDING DISPOSITIVE
MOTIONS DEADLINE NUNC PRO TUNC
TO JANUARY 6, 2020
ORDER DEEMING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
TIMELY FILED ON JANUARY 6, 2020

17
18
19
20
21

I.

BACKGROUND

22

Ronald Timberland (“Plaintiff”) is a state prisoner proceeding pro se and in forma

23

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

24

proceeds with Plaintiff’s Second Amended Complaint filed on June 20, 2018, against defendant

25

G. Mascarenas (Correctional Counselor I) for failure to protect Plaintiff in violation of the Eighth

26

Amendment.1 (ECF No. 26.)

27
28

1
On October 12, 2018, the court issued an order dismissing all other claims and defendants from
this action, based on Plaintiff’s failure to state a claim. (ECF No. 30.)

1

1

On January 9, 2019, the court issued a Discovery and Scheduling Order establishing

2

pretrial deadlines for the parties, including a deadline of September 9, 2019, for the filing of

3

pretrial dispositive motions. (ECF No. 37.) On June 18, 2019, the court modified the scheduling

4

order and extended the dispositive motions deadline to December 9, 2019. (ECF No. 42.)

5

On December 23, 2019, Defendant filed a motion to modify the current scheduling order

6

to extend the dispositive motions deadline to January 6, 2020. (ECF No. 49.) Plaintiff has not

7

opposed the motion.

8

II.

MOTION TO MODIFY SCHEDULING ORDER

9

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

10

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

11

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

12

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

13

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

14

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

15

order fails to show due diligence the inquiry should end and the court should not grant the motion

16

to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002).

17

Defendant requests an extension of the dispositive motions deadline until January 6,

18

2020. Defense counsel declares that she is preparing a motion for summary judgment, but

19

completion of the motion was delayed because defendant Mascarenas requested changes in her

20

declaration in support of the motion, and as of December 23, 2019, defense counsel had not

21

received the additional documents and signed declaration needed to make the changes. (Decl. of

22

Kelli Hammond, ECF No. 49-1 ¶¶ 7-10.)

23

Defense counsel has shown that despite her best efforts she was unable to file Defendant’s

24

motion for summary judgment before the expiration of the current dispositive motions deadline.

25

On January 6, 2020, Defendant’s motion for summary judgment was filed. (ECF No. 51.)

26

Therefore, good cause appearing, Defendant’s motion to modify the scheduling order shall be

27

granted and the dispositive motions deadline shall be extended nunc pro tunc to January 6, 2020.

28

III.

CONCLUSION
2

1

Based on the foregoing, IT IS HEREBY ORDERED that:

2

1.

3
4

Order, filed on December 23, 2019, is GRANTED;
2.

5
6

The deadline for filing and serving pretrial dispositive motions is extended nunc
pro tunc to January 6, 2020;

3.

7
8

Defendant Mascarenas’s motion to modify the court’s Discovery and Scheduling

Defendant’s motion for summary judgment is deemed timely filed on January 6,
2020; and

4.

9

All other provisions of the court’s January 9, 2019, Discovery and Scheduling
Order remain the same.

10
11
12
13

IT IS SO ORDERED.
Dated:

January 9, 2020

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3