Asberry v. Biter

Filing 192

ORDER DENYING Plaintiff's Motion for court order as moot 178 and GRANTING Defendants' Request for Clarification 188 signed by Magistrate Judge Jeremy D. Peterson on 5/1/2020. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TONY ASBERRY,

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Plaintiff,

Case No. 1:16-cv-01741-NONE-JDP
ORDER DENYING PLAINTIFF’S MOTION
FOR COURT ORDER AS MOOT

v.
ECF No. 178
C. RELEVANTE, et al.,
Defendants.

ORDER GRANTING DEFENDANTS’
REQUEST FOR CLARIFICATION
ECF No. 188

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Each party has filed a motion regarding the trial and trial date in this case. ECF Nos. 178,
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188. Plaintiff requests that we direct the Clerk of Court to recognize the trial date. ECF No. 178.
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Defendants ask for clarification regarding whether trial can go forward without an assigned
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district judge and with restrictions on travel due to the outbreak of COVID-19.
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On April 29, 2020, the court modified the trial schedule due to restrictions related to
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COVID-19. ECF No. 191. This order mooted plaintiff’s motion. ECF No. 178. We will grant
defendants’ request and provide clarification on trial procedures. ECF No. 188.

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As indicated in the standing order attached to the order unassigning the district judge in
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this case, ECF No. 183-1, the case will go forward without assigning a district judge while that
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position remains vacant. The trial will be held before a district judge, but the case will not be
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assigned to one at this time. However, as noted in the standing order, criminal trials will take
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precedence over this civil trial. Thus, it is possible that the trial date may be reset again, either

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because of the judicial emergency, the COVID-19 emergency, or both. The parties may wish to

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consider whether they would consent to a bench trial, which may be easier to accommodate than a

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jury trial. The parties are reminded that they have the option to consent to magistrate judge

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jurisdiction under 28 U.S.C. § 636(c); consent would increase the likelihood of the trial

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proceeding on the scheduled date. The parties are free to withhold consent without adverse

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substantive consequences.

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Accordingly,

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1. Plaintiff’s motion for court order, ECF No. 178, is denied as moot.
2. Defendant’s request for clarification, ECF No. 188, is granted.

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IT IS SO ORDERED.

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Dated:
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May 1, 2020
UNITED STATES MAGISTRATE JUDGE

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No. 204.

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