Xavier v. Roche et al

Filing 103

ORDER signed by Magistrate Judge Carolyn K. Delaney on 05/29/15 granting 101 Motion to re-open discovery. Discovery is due by 08/14/15. All requests for discovery shall be served not later than 60 days prior to that date. Any motions necessary to compel discovery shall be filed by that date. All pretrial motions, except motions to compel discovery, shall be filed on or before 11/13/15. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

GARY R. XAVIER,

12
13
14
15

No. 2:09-cv-0783 KJM CKD P

Plaintiff,
v.

ORDER

M. FRENCH, et al.,
Defendants.

16
17

Before the court is plaintiff’s April 28, 2015 motion to re-open discovery (ECF No. 101),

18

which closed on April 10, 2015. (ECF No. 93.) Defendants do not oppose the motion, so long as

19

they may also conduct discovery during the extended period. (ECF No. 102.) Defendants request

20

that the dispositive motion deadline be extended accordingly. (Id.)

21

Modification of the court’s scheduling order to allow further discovery requires a showing

22

of good cause, Fed. R. Civ. P. 16(b)(4), and good cause requires a showing of due diligence,

23

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992). To establish good

24

cause, the party seeking the modification of a scheduling order must generally show that even

25

with the exercise of due diligence, they cannot meet the requirement of the order. Id. The court

26

may also consider the prejudice to the party opposing the modification. Id. If the party seeking

27

to amend the scheduling order fails to show due diligence the inquiry should end and the court

28

should not grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d
1

1
2

1080, 1087 (9th Cir. 2002).
Here, plaintiff has shown sufficient diligence for the court to grant his unopposed motion.

3

Essentially, he served untimely discovery requests on defendants because, as a pro se litigant

4

without access to legal materials, he misunderstood the discovery deadline.

5

Good cause appearing, IT IS HEREBY ORDERED that:

6

1. Plaintiff’s motion to re-open discovery (ECF No. 101) is granted;

7

2. Discovery is due by August 14, 2015. All requests for discovery shall be served not

8

later than sixty days prior to that date. Any motions necessary to compel discovery shall be filed

9

by that date; and

10

3. All pretrial motions, except motions to compel discovery, shall be filed on or before

11

November 13, 2015.

12

Dated: May 29, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

13
14
15
16
17

2 / xavi0783.disc2

18
19
20
21
22
23
24
25
26
27
28
2