McNeal v. Fleming, et al
ORDER signed by District Judge Troy L. Nunley on 12/8/2017 DENYING 324 Motion to Continue. (Hunt, G)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
FLEMING, et al.,
ORDER DENYING MOTION TO
This matter is before the Court on Plaintiff Vernon McNeal’s (“Plaintiff”) motion to
continue the trial. (ECF No. 324.) The Court requested Defendants respond to the motion. (ECF
No. 325.) Defendants filed a response opposing the motion. (ECF No. 328.)
Plaintiff moves to continue on the grounds that he has been preparing for another trial and
has not been preparing to work on this trial. (ECF No. 324 at 2.) Plaintiff also contends he did
not have the boxes containing his legal documents and thus was unable to prepare. (ECF No. 324
at 2.) Defendants argue Plaintiff has not shown good cause for continuing the trial. (ECF No.
328.) Defendants assert the good cause standard requires a showing of diligence and Plaintiff
cannot show diligence here. (ECF No. 328 at 4.)
Defendants are correct that a Pretrial Scheduling Order “may be modified only for good
cause.” Fed. R. Civ. P. 16(b)(4). The party seeking to amend must show good cause. Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992). “Rule 16(b)’s ‘good cause’
standard primarily considers the diligence of the party seeking amendment.” Id. at 609. “If that
party was not diligent, the inquiry should end.” Id.
This is not the first request Plaintiff has made to continue the trial. Plaintiff has repeatedly
requested to move the trial for the same reason as stated here — he is preparing for the other trial.
On February 1, 2017, the Court reset the trial to February 26, 2018, an entire year later, in order
to afford Plaintiff ample time to prepare. (ECF No. 315.) The Court also noted it would look
upon with disfavor any future requests for continuance that raised Plaintiff’s other trial as
justification. (ECF No. 315.) Now nine months later, Plaintiff requests the Court vacate its trial
set for February 26, 2018, and not set any future dates until his other case has gone to trial.
Through his own admission Plaintiff demonstrates he has not been diligent. Plaintiff admits he
has been preparing for his other trial and not preparing for this trial. Accordingly, the Court
cannot find good cause exists to continue the trial. For the reasons set forth above, Plaintiff’s
motion to continue (ECF No. 324.) is hereby DENIED.
IT IS SO ORDERED.
Dated: December 8, 2017
Troy L. Nunley
United States District Judge
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