Xavier v. Roche et al
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
GARY R. XAVIER,
No. 2:09-cv-0783 KJM CKD P
M. FRENCH, et al.,
Before the court is plaintiff’s April 28, 2015 motion to re-open discovery (ECF No. 101),
which closed on April 10, 2015. (ECF No. 93.) Defendants do not oppose the motion, so long as
they may also conduct discovery during the extended period. (ECF No. 102.) Defendants request
that the dispositive motion deadline be extended accordingly. (Id.)
Modification of the court’s scheduling order to allow further discovery requires a showing
of good cause, Fed. R. Civ. P. 16(b)(4), and good cause requires a showing of due diligence,
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992). To establish good
cause, the party seeking the modification of a scheduling order must generally show that even
with the exercise of due diligence, they cannot meet the requirement of the order. Id. The court
may also consider the prejudice to the party opposing the modification. Id. If the party seeking
to amend the scheduling order fails to show due diligence the inquiry should end and the court
should not grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d
1080, 1087 (9th Cir. 2002).
Here, plaintiff has shown sufficient diligence for the court to grant his unopposed motion.
Essentially, he served untimely discovery requests on defendants because, as a pro se litigant
without access to legal materials, he misunderstood the discovery deadline.
Good cause appearing, IT IS HEREBY ORDERED that:
1. Plaintiff’s motion to re-open discovery (ECF No. 101) is granted;
2. Discovery is due by August 14, 2015. All requests for discovery shall be served not
later than sixty days prior to that date. Any motions necessary to compel discovery shall be filed
by that date; and
3. All pretrial motions, except motions to compel discovery, shall be filed on or before
November 13, 2015.
Dated: May 29, 2015
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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