McNeal v. Fleming, et al

Filing 330

ORDER signed by District Judge Troy L. Nunley on 12/8/2017 DENYING 324 Motion to Continue. (Hunt, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VERNON MCNEAL,

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No. 2:02-cv-02524-TLN-CKD

Plaintiff,

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v.

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FLEMING, et al.,

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ORDER DENYING MOTION TO
CONTINUE
Defendants.

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This matter is before the Court on Plaintiff Vernon McNeal’s (“Plaintiff”) motion to

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continue the trial. (ECF No. 324.) The Court requested Defendants respond to the motion. (ECF

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No. 325.) Defendants filed a response opposing the motion. (ECF No. 328.)

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Plaintiff moves to continue on the grounds that he has been preparing for another trial and

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has not been preparing to work on this trial. (ECF No. 324 at 2.) Plaintiff also contends he did

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not have the boxes containing his legal documents and thus was unable to prepare. (ECF No. 324

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at 2.) Defendants argue Plaintiff has not shown good cause for continuing the trial. (ECF No.

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328.) Defendants assert the good cause standard requires a showing of diligence and Plaintiff

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cannot show diligence here. (ECF No. 328 at 4.)

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Defendants are correct that a Pretrial Scheduling Order “may be modified only for good

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cause.” Fed. R. Civ. P. 16(b)(4). The party seeking to amend must show good cause. Johnson v.

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Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992). “Rule 16(b)’s ‘good cause’
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standard primarily considers the diligence of the party seeking amendment.” Id. at 609. “If that

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party was not diligent, the inquiry should end.” Id.

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This is not the first request Plaintiff has made to continue the trial. Plaintiff has repeatedly

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requested to move the trial for the same reason as stated here — he is preparing for the other trial.

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On February 1, 2017, the Court reset the trial to February 26, 2018, an entire year later, in order

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to afford Plaintiff ample time to prepare. (ECF No. 315.) The Court also noted it would look

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upon with disfavor any future requests for continuance that raised Plaintiff’s other trial as

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justification. (ECF No. 315.) Now nine months later, Plaintiff requests the Court vacate its trial

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set for February 26, 2018, and not set any future dates until his other case has gone to trial.

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Through his own admission Plaintiff demonstrates he has not been diligent. Plaintiff admits he

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has been preparing for his other trial and not preparing for this trial. Accordingly, the Court

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cannot find good cause exists to continue the trial. For the reasons set forth above, Plaintiff’s

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motion to continue (ECF No. 324.) is hereby DENIED.

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IT IS SO ORDERED.
Dated: December 8, 2017

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Troy L. Nunley
United States District Judge

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