Ward v. Champen et al

Filing 34

ORDER signed by Magistrate Judge Dale A. Drozd on 7/28/2011 ORDERING 22 Motion to Compel is deemed WITHDRAWN; 24 Motion to Appoint Counsel is DENIED without prejudice; 23 Motion for Extension of time to conduct discovery is DENIED without prejudice; 31 Motion to Strike is DENIED; Plaintiff shall file an opposition to defendants' Motion for Summary Judgment w/i 30 days from service of this order; defendants shall file a reply, if any, in accordance with LR 230(l). (Waggoner, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARCUS BENJAMIN WARD,

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Plaintiff,

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vs.
SHERMAN CHAMPEN, et al.,

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Defendants.

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ORDER
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No. CIV S-10-1942 DAD P

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42
U.S.C. § 1983. Several motions by both parties are pending before the court.

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On March 17, 2011, defendants filed a motion to compel. On March 24, 2011,

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defendants filed a notice of withdrawal of their motion because they received plaintiff’s

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responses to their discovery requests. Under these circumstances, the court will deem

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defendants’ motion to compel withdrawn.

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On March 21, 2011, plaintiff filed a motion to certify Mr. Justin L. Ward as his

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attorney of record for the limited purpose of conducting discovery on his behalf. Plaintiff also

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filed a motion for a sixty-day extension of time to conduct discovery. Defendants have opposed

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both motions, and plaintiff has filed replies in support of both motions.

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As to plaintiff’s motion to certify Mr. Justin L. Ward as his attorney, plaintiff is

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advised that under Local Rule 182, “no attorney may participate in any action unless the attorney

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has appeared as an attorney of record.” See Local Rule 182(a)(1). Here, plaintiff’s purported

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retained counsel has not appeared in this action as an attorney of record. Nor has plaintiff

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submitted any notices, declarations, or other documents from Mr. Justin L. Ward indicating that

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he is willing to represent plaintiff as his counsel of record in this matter. Accordingly, the court

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will not certify Mr. Justin L. Ward or otherwise recognize him as plaintiff’s counsel at this time.

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That order is without prejudice to Attorney Ward filing a motion to substitute in as plaintiff’s

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counsel of record in this action.

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As to plaintiff’s motion to extend discovery, plaintiff is advised that in the

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absence of good cause, the court will not modify the scheduling order in this case. See Fed. R.

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Civ. P. 16(f); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992).

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Good cause exists when the moving party demonstrates that he could not meet a deadline despite

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exercising due diligence. Id. at 609. Here, plaintiff has not shown why discovery could not be

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completed in the four months allotted in the court’s scheduling order or demonstrated good cause

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to extend the discovery deadline by sixty days. However, the court will allow plaintiff to renew

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his motion in the event that he retains counsel and counsel makes an appearance as attorney of

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record in this case.

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Finally, on June 9, 2011, defendants filed a motion for summary judgment.

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Instead of filing an opposition to the motion, plaintiff filed a motion to strike defendants’ motion

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as untimely. Defendants have opposed plaintiff’s motion to strike, and plaintiff has filed a reply

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in support of his motion. Plaintiff is advised that, under the court’s discovery and scheduling

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order, the parties were allowed to file dispositive motions on or before June 10, 2011.

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Defendants filed their motion on June 9, 2011, and therefore their motion is timely. Accordingly,

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the court will deny plaintiff’s motion to strike. In addition, in the interest of justice, the court

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will grant plaintiff thirty days to file a proper opposition to defendants’ motion for summary

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judgment.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Defendants’ motion to compel (Doc. No. 22) is deemed withdrawn;

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2. Plaintiff’s motion for certification of attorney (Doc. No. 24) is denied without

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prejudice;

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3. Plaintiff’s motion for an extension of time to conduct discovery (Doc. No. 23)
is denied without prejudice;

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4. Plaintiff’s motion to strike (Doc. No. 31) is denied; and

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5. Plaintiff shall file an opposition to defendants’ motion for summary judgment

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within thirty days of the date of service of this order. Defendants shall file a reply, if any, in

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accordance with Local Rule 230(l).

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DATED: July 28, 2011.

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DAD:9
ward1942.mots

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