Lopez v. Schwarzenneger

Filing 205

STIPULATION and ORDER signed by Magistrate Judge Allison Claire on 11/05/14 ordering ( Dispositive Motions deadline continued to 1/15/2015.) No further extensions. (Plummer, M) Modified on 11/5/2014 (Plummer, M).

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ROBERT NAVARRO
Attorney at Law
State Bar No. 128461
1295 North Wishon Avenue, Suite 3
Fresno, California 93728
TEL: [phone]
FAX: [phone]

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[e-mail]

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Attorney for Andrew Rick Lopez

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA,

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SACRAMENTO DIVISION

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ANDREW R. LOPEZ,
Plaintiff,

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No. 2:09-cv-01760 MCE AC P

v.

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ARNOLD SCHWARZENEGGER, et al.,

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STIPULATION AND [PROPOSED]
ORDER RE EXTENSION OF
TIME TO FILE DISPOSITIVE
MOTIONS FILING DEADLINE

Defendants.

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Under Federal Rules of Civil Procedure 16(b)(4) and Local Rule 143, the

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parties, through their counsel of record, agree to and request a continuance of the

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deadline for filing the parties’ dispositive motions from November 6, 2014, to Janury

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15, 2015. Good cause exists to grant this stipulation because plaintiff’s counsel

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has been fully occupied in plaintiff’s predecessor case, Lopez v. Cook, 2:03-cv-

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01605, in which plaintiff voluntarily dismissed six defendants and a cause of action

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(see Docs. 384 & 385, 2:03-cv-01605), and has subsequently filed cross-motions

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for summary judgment and oppositions (see Docs. 392 & 393, 397 & 398) and will

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be filing replies October 24, with a motion’s hearing date of November 7, 2014. In

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addition counsel, for the last year and on a continuing basis, has had significant

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responsibilities in two ongoing family medical issues.

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A scheduling order may be modified only upon a showing of good cause and
Stipulation and Order to Continue Dispositive Motion Filing Date;

Lopez v. Schwarzenegger, 2:09-cv-01760 MCE AC P

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by leave of Court. Fed.R.Civ.P. 6(b)(1)(A), 16(b)(4); see, e.g., Johnson v.

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Mammoth Recreations, 975 F.2d 604, 609 (1992),(describing the factors a court

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should consider in ruling on such a motion). In considering whether a party moving

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for a schedule modification has good cause, the Court primarily focuses on the

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diligence of the party seeking the modification. Johnson, 975 F.2d at 609 (citing

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Fed.R.Civ.P. 16 advisory committee’s notes of 1983 amendment). “The district

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court may modify the pretrial schedule ‘if it cannot reasonably be met despite the

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diligence of the party seeking the amendment.’” Id. (quoting Fed.R.Civ.P. 16

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advisory committee notes of 1983 amendment).

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As noted, in Lopez v. Cook the parties are fully engaged in the process of

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litigating cross motions for summary judgment. Plaintiff has streamlined the action

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by voluntarily dismissing six defendants who were not clearly liable under plaintiff’s

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core claim of Fourteenth Amendment due process violations related to his 2000

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gang validation. In the instant case, plaintiff has alleged violations of due process

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of related to gang validations which occurred in 2003 and 2005. Both those

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validations were premised on the same gang validation sources as 2000 and on the

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presumption that the 2000 validation was constitutionally valid. If the court in Cook

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rules that the 2000 validation was obtained in violation of plaintiff’s clearly

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established due process rights of notice and an opportunity to be heard, the

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decision could have significant impact on the pending claims in this case.

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For that reason, the parties believe that moving the preparation and filing of

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the dispositive motions here to a later date when the impact of the Cook summary

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judgment outcome can be known and the motions drafted with those consequences

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in mind would best serve judicial economy.

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Secondly, plaintiff’s counsel’s best friend, Thomas Quinn, last year and early

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this year underwent treatment for parotid (salivary) gland cancer, and counsel was

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an integral part of his support team. His assisted during Mr. Quinn’s surgery, and

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radiation and chemotherapy treatments, which consumed approximately five
Stipulation and Order to Continue Dispositive Motion Filing Date;

Lopez v. Schwarzenegger, 2:09-cv-01760 MCE AC P

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months. He was found clear of cancer in February of this year, but it has recently

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returned and counsel has again assisted him in a similar course of treatment as last

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year, including numerous instances out of town travel for consultations and tests.

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In the last m days, Mr. Quinn was diagnosed as having an aggressive recurrence

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Further, counsel is the power of attorney and medical advocate for a family

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member, Susan Richardson, who has been undergoing cancer treatment since the

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Summery of 2014 for stage four ovarian cancer. In August, Ms. Richardson was

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transferred to Sierra Medical Center in El Paso, Texas, and was in a coma for

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several days. Counsel flew to El Paso and spent five days to attend to her

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situation. Fortunately, Ms. Richardson improved and was returned to a nursing

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facility in New Mexico and is undergoing further recuperation in advance of

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additional cancer treatment. Counsel’s role as power of attorney has additionally

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required considerable time managing financial matters.

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For the court’s consideration, plaintiff’s counsel has attached letters from
some of the medical providers in the above matters.

For these reasons, the parties request that the parties’ dispositive motions

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filing deadline be continued to January 15, 201, or later.

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outcome of the Cook summary judgments, plaintiff’s counsel would like time prior

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to the preparation of dispositive motions to “streamline” plaintiff’s case as was

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done in Cook. In the alternative, the parties request that the dispositive motions

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deadline be vacated and the matter be set for a status conference after the rulings

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on the pending motions are issued in Lopez v. Cook, 2:03-cv-01605.

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In addition to the

IT IS SO STIPULATED.
Dated:

October 20, 2014

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/s/Robert Navarro
ROBERT NAVARRO
Attorneys for Andrew Rick Lopez

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Stipulation and Order to Continue Dispositive Motion Filing Date;

Lopez v. Schwarzenegger, 2:09-cv-01760 MCE AC P

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Dated:

WILLIAMS & ASSOCIATES

September 20, 2014

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/s/Matthew Ross Wilson
MATTHEW ROSS WILSON
Attorneys for Defendants

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ORDER

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Based on the parties’ stipulation and good cause appearing, it is ordered
that:
The dispositive motion filing deadline of November 6, 2014, is continued to
January 15, 2015. No further extensions.
IT IS SO ORDERED.

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Dated: November 5, 2014
HON. ALLISON CLAIRE
U.S. MAGISTRATE JUDGE

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Stipulation and Order to Continue Dispositive Motion Filing Date;

Lopez v. Schwarzenegger, 2:09-cv-01760 MCE AC P

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