Alford v. Ma

Filing 25

ORDER signed by Magistrate Judge Kendall J. Newman on 3/16/15 ORDERING that Defendants request to modify the scheduling order herein 22 is GRANTED. The Discovery and Scheduling Order 19 is hereby amended to provide that all pretrial motions, except motions to compel discovery, shall be filed on or before March 25, 2015. Plaintiffs motion for a court order regarding notarial services 21 is DENIED.(Dillon, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TRACY FIDEL ALFORD, 12 Plaintiff, 13 v. 14 No. 2:13-cv-2493 KJM KJN P DR. MA, 15 ORDER Defendant. 16 17 Plaintiff is a state prisoner, currently incarcerated at California State Prison-Sacramento, 18 who is proceeding in forma pauperis and without counsel, in this civil rights action filed pursuant 19 to 42 U.S.C. § 1983. Plaintiff alleges that defendant Dr. Ma was deliberately indifferent to his 20 serious medical needs, in violation of the Eight Amendment. Presently before the court are 21 defendant’s request to modify the scheduling order herein, and plaintiff’s motion regarding 22 notarial services. 23 I. Request to modify scheduling order 24 On March 4, 2015, defendant Ma filed a request to modify the scheduling order herein, in 25 order to extend the deadline for filing pretrial motions from January 5, 2015, to March 27, 2015. 26 (ECF No. 22.) Counsel for defendant avers that his staff neglected to electronically calendar the 27 deadlines set forth in the court’s June 9, 2014 Discovery and Scheduling Order; counsel only 28 discovered the mistake on March 4, 2015. Defendant filed the request to modify the scheduling 1 order on the same day. 2 Under Federal Rule of Civil Procedure 16, “A schedule may be modified only for good 3 cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). According to the Ninth Circuit, 4 “Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking the 5 amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). 6 Defendant argues that he acted diligently under the standard set forth in Jackson v. Laureate, Inc., 7 186 F.R.D. 605 (E.D. Cal. 1999): 8 (1) whether the movant was diligent in assisting the Court in creating a workable Rule 16 scheduling order, (2) whether the movant’s noncompliance with deadlines occurred, notwithstanding its diligent efforts to comply, because of matters unforeseen at the time of the Rule 16 scheduling conference, and (3) whether the movant was diligent in seeking amendment of the scheduling order once it became apparent that it could not comply with the order. 9 10 11 12 Id. at 608 (internal citations omitted). According to defendant, he sought to modify the 13 scheduling order on the very day that he discovered the error. He does not seek additional time to 14 conduct discovery, but only to file a motion for summary judgment or summary adjudication. 15 The court is reluctant to modify the scheduling order. As defendant’s counsel himself 16 notes, on November 24, 2014, plaintiff filed a motion for an order regarding a notary, which is 17 addressed below. The court is left to wonder why notice of the filing of this motion did not 18 prompt counsel to check the status of the case, including any filing deadlines. 19 That said, the Federal Rules of Civil Procedure are to “be construed and administered to 20 secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. 21 Civ. P. 1. As defendant’s anticipated motion may help narrow the issues presented at trial, 22 thereby saving the court time and expense, it appears consonant with Rule 1 to grant defendant a 23 modest extension of time. “Summary judgment procedure is properly regarded not as a 24 disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole . . . .” 25 Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (citing Fed. R. Civ. P. 1). Moreover, counsel 26 has been frank about the error and avers that he acted immediately to file his request, which is 27 reflective of diligence. 28 //// 2 1 Accordingly, the court finds good cause to modify the scheduling order in order to give 2 the parties until March 25, 2015, three weeks from the date defendant’s counsel discovered the 3 error, to file pre-trial motions. In so doing, the court is guided by decisions of other courts that 4 have modified scheduling orders under similar circumstances. See, e.g., Flores v. Merced Irr. 5 Dist., No. 1:09-cv-1529 LJO DLB, 2010 WL 4877795 (E.D. Cal. Nov. 23, 2010) (finding good 6 cause to modify scheduling order based in part on diligence of plaintiff, who entered response 7 deadline in his master calendar under the wrong year); Masterpiece Leaded Windows Corp. v. 8 Joslin, No. 08–CV–0765–JM (JMA), 2009 WL 1456418 (S.D. Cal. May 22, 2009) (finding good 9 cause to modify scheduling order based on diligence of plaintiff, whose change of computer 10 systems caused him to inadvertently lose data). 11 II. Motion for order re: notarial services 12 On November 24, 2014, plaintiff filed a motion entitled “Request for Court to Issue Order 13 to Custodian to Provide Plaintiff with Notary for Wells Fargo.” (ECF No. 21.) In it, plaintiff 14 explains that he requires assistance from the court regarding a check that was stolen from him and 15 cashed without his authorization and signature. Plaintiff believes that the check was cashed at a 16 Wells Fargo bank branch in San Francisco, California; Wells Fargo has informed plaintiff that the 17 bank requires a notarized signature before it can provide the information he seeks. Plaintiff, in 18 turn, cannot obtain a notarized signature without paying $10.00, which exceeds the sum in his 19 prison trust account. Consequently, plaintiff requests that the court either direct the prison to 20 provide him with a notary or that the court “do [sic] the notary and add the $10.00 notary fee to 21 the statutory fee of $350.00,” (id. at 2-3), i.e., the filing fee for the action herein which plaintiff is 22 being permitted to pay in monthly installments. 23 While the court sympathizes with plaintiff’s predicament, the order he seeks is beyond the 24 court’s power and jurisdiction to issue. The allegedly-stolen check is not at issue in this action. 25 Neither the California Department of Corrections and Rehabilitation, nor a relevant official at 26 California State Prison-Sacramento, either or both of which would presumably have the power to 27 provide plaintiff with notary services, is named as a party herein. The statute under which the 28 court is authorized to allow litigants to proceed in forma pauperis, 28 U.S.C. § 1915, only applies 3 1 to fees for the “commencement, prosecution, or defense of any suit, action, or proceeding, civil or 2 criminal, or appeal therein,” not for notarial services. Finally, the court lacks any means to 3 directly provide plaintiff with a notary. Consequently, as the court lacks the authority to issue the 4 relief plaintiff seeks, the court must deny his motion. 5 III. Conclusion 6 In light of the foregoing, IT IS HEREBY ORDERED that: 7 1. Defendant’s request to modify the scheduling order herein (ECF No. 22) is granted. 8 2. The Discovery and Scheduling Order (ECF No. 19) is hereby amended to provide that 9 10 11 12 all pretrial motions, except motions to compel discovery, shall be filed on or before March 25, 2015. 3. Plaintiff’s motion for a court order regarding notarial services (ECF No. 21) is denied. Dated: March 16, 2015 13 14 15 /alfo2493.36+notary 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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