Willis v. Cassey et al

Filing 63

ORDER signed by Magistrate Judge Allison Claire on 03/14/13 granting 62 Motion for leave to bring a summary judgment, and defendant have until 04/15/13 to file their summary judgment motion. There will be no extension of time absent extraordinar y circumstances. Following service of the summary judgment motion, plaintiff will have 30 days to respond, after which defendants will have 7 days to file a reply. The dates previously set for the trial confirmation hearing 05/16/13 and for the jur y trial 09/16/13 are hereby vacated, to be re-set, if appropriate, upon adjudication of defendants' motion for summary judgment. Defendants must show cause within 14 days why monetary sanctions should not be imposed for the inordinate tardiness of the motion 62 . (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARCELL WILLIS,
Plaintiff,

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No. 2:10-cv-1631 KJM AC P

vs.
FOLSOM STATE PRISON
MEDICAL STAFF, et al.,

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Defendants.
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ORDER
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Plaintiff, a former state prisoner, proceeds pro se with a civil rights action

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pursuant to 42 U.S.C. § 1983. Pending before the court is defendants’ belated motion for leave

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to file a motion for summary judgment, filed on March 13, 2013 (ECF No. 62).

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The January 27, 2012 deadline for filing pretrial dispositive motions was set in

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this case in the Discovery and Scheduling Order filed on April 26, 2011 (ECF No. 29).

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Defendants sought and were granted an extension of time until February 27, 2012 to file a

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motion to dismiss for failure to exhaust administrative remedies by order filed on January 30,

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2012 (ECF No. 45). The findings and recommendations, filed on August 10, 2012 (ECF No.

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51), recommending the motion to dismiss be granted in part and denied in part were adopted by

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order filed on September 25, 2012 (ECF No. 55). Defendants’ motion to dismiss for failure to
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exhaust administrative remedies was granted as to two defendants and denied as to defendants

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Lee, Vasquez, Hayward, Dochow, Curry and Damian and the case was to proceed to trial. ECF

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No. 55. On October 15, 2012, a further scheduling order was filed setting a pretrial conference

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before the magistrate judge, on January 25, 2013, and a trial confirmation hearing on May 16,

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2013 and a jury trial on September 16, 2013 before Judge Mueller. ECF No. 56. Thereafter, the

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parties filed their pretrial statements and the undersigned issued a Pretrial Order (ECF No. 60) on

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January 24, 2013. In the Pretrial Order, inter alia, the dates for the trial confirmation hearing and

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the jury trial before Judge Mueller, as previously set forth in the Further Scheduling Order, were

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re-confirmed.

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Defendants’ tardy motion for leave to file a summary judgment motion relies on

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Rules 6(b)(1)(B) and 60(b)(1), Fed. R. Civ. P. Defendants contend that their failure to seek

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modification of the scheduling order prior to expiration of the dispositive motion deadline

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constitutes excusable neglect under both provisions of the rules. Specifically, defendants’

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counsel suggests that the pendency of the motion to dismiss excuses the failure to timely file a

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summary judgment motion. However, even if defendants were justified in seeking dismissal

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pursuant to Rule 12(b) prior to preparing a motion for summary judgment, nothing prevented

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them from seeking modification of the scheduling order to permit a summary judgment motion

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immediately upon resolution of the motion to dismiss. This defendants failed to do. Neither did

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they seek prompt reconsideration of the January Pretrial Order that re-affirmed deadlines.

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Instead, defendants have waited almost to the date set for the trial confirmation hearing.

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Defendants fail to present a satisfactory explanation for being so dilatory.

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Nonetheless, the court agrees with defendants that it would be a waste of judicial resources to

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proceed to a jury trial without considering a motion which might dispose of, or at least narrow,

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the issues. In the interests of efficiency and judicial economy, this court will permit defendants

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to bring a motion for summary judgment. Nonetheless, the court will require defendants to show

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cause within fourteen days why sanctions should not be imposed for dilatoriness in this matter.
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Accordingly, IT IS ORDERED:

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1. Defendants’ motion for leave to bring a summary judgment (ECF No. 62) is

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granted, and defendants have until April 15, 2013, to file their summary judgment motion. There

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will be no extension of time absent extraordinary circumstances;

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2. Following service of the summary judgment motion, plaintiff will have thirty
days to respond, after which defendants will have seven days to file a reply;

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3. The dates previously set for the trial confirmation hearing (May 16, 2013) and

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for the jury trial (September 16, 2013) are hereby VACATED, to be re-set, if appropriate, upon

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adjudication of defendants’ motion for summary judgment; and

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4. Defendants must show cause, within fourteen days, why monetary sanctions

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should not be imposed for the inordinate tardiness of the motion at ECF. No. 62.

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DATED: March 14, 2013.

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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AC:009/will1631.ord

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