Penton v. Hubard et al

Filing 303

ORDER signed by Magistrate Judge Kendall J. Newman on 1/11/2023 DENYING 296 Motion to modify the scheduling order; GRANTING 300 Motion to continue the trial date; VACATING the final pretrial conference set for 6/15/2023; CONINTUING the Jury Trial to 9/18/2023 at 09:00 AM in Courtroom 2 (TLN) before District Judge Troy L. Nunley; and SETTING the Final Pretrial Conference to 9/7/2023 at 02:00 PM. (Perdue, C.)

Case 2:11-cv-00518-TLN-KJN Document 303 Filed 01/11/23 Page 1 of 3
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY PENTON,

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No. 2:11-cv-0518 TLN KJN P

Plaintiff,
v.

ORDER

LAYTON JOHNSON, JR., et al.,
Defendants.

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Plaintiff’s motion to modify the scheduling order came on regularly for hearing January

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10, 2023, by Zoom. Pierce A. MacConaghy, Buzz Harrison Frahn and Dawson Honey appeared

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for plaintiff. Nicole M. Cahill appeared for defendant L. Johnson. Upon review of the motion

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and the documents in support and opposition, upon hearing the arguments of counsel and good

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cause appearing therefor, THE COURT FINDS AND ORDERS AS FOLLOWS.

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“The district court is given broad discretion in supervising the pretrial phase of litigation.”

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation and internal

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quotation marks omitted). Rule 16(b) provides that “[a] schedule may be modified only for good

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cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Good case requires a showing of

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due diligence. Johnson, 975 F.2d at 607. “The schedule may be modified ‘if it cannot reasonably

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be met despite the diligence of the party seeking the extension.’” Zivkovic v. Southern California

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Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting Johnson, 975 F.2d at 607).
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Case 2:11-cv-00518-TLN-KJN Document 303 Filed 01/11/23 Page 2 of 3
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After explaining the shortage of district judges in the Eastern District and the resulting

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congested court dockets, counsel were informed that Judge Nunley has no earlier available trial

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dates. Thus, plaintiff’s motion to advance the trial date is denied.

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On the other hand, the court finds defense counsel’s high risk pregnancy constitutes good

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cause to continue the jury trial date. See Cal. Clovis, Ltd. Liab. Co. v. Sierra Vista Realty Ltd.

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Liab. Co., 2021 U.S. Dist. LEXIS 102011, at *2-3 (E.D. Cal. May 25, 2021) (finding stipulation

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established good cause to modify scheduling order in part due to counsel’s maternity leave).

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Nevertheless, the court is cognizant that plaintiff has waited many years for his day in court.

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Counsel estimated that trial in this matter could take three to five days.

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Following discussion concerning defense counsel’s trial schedule for October, the

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undersigned continued the jury trial to September 18, 2023, with the understanding that if defense

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counsel’s October trial schedule cleared up, and October trial dates before the district court

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remain available, the court would entertain a stipulation to continue the trial to a date in October.

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That said, defense counsel was put on notice that if difficulties arise with the baby’s birth or

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maternity leave is extended for some reason, defense counsel must make arrangements to have

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alternate counsel available to try the case because the court is not inclined to continue the trial

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again. During her maternity leave, defense counsel should also arrange to have alternate counsel

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available for communications with opposing counsel and trial preparation.

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Finally, the deadlines for filing pretrial statements remain as scheduled: January 16, 2023,

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for plaintiff; February 15, 2023, for defendant Johnson (unless the parties want to stipulate to

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briefly extend those dates). L.R. 281.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to modify the scheduling order to advance the jury trial date (ECF

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No. 296) is denied;

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2. Defendant Johnson’s motion to continue the trial date (ECF No. 300) is granted;

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3. The final pretrial conference set for June 15, 2023, before the district court, is vacated;

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4. The August 21, 2023 jury trial date is continued to September 18, 2023, at 9:00 a.m., in

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Courtroom #2, before the Honorable Troy L. Nunley; and
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Case 2:11-cv-00518-TLN-KJN Document 303 Filed 01/11/23 Page 3 of 3
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5. Final pretrial conference/trial readiness conference is set for September 7, 2023, at 2:00

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p.m.

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Dated: January 11, 2023

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/pent0518.oah

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