Boyce v. Fox et al

Filing 59

ORDER signed by Magistrate Judge Kendall J. Newman on 2/21/2018 GRANTING 58 Motion and VACATING the discovery and dispositive motions deadlines set in 54 Discovery and Scheduling Order. The court will issue a revised scheduling order, if appropriate, following resolution of the pending motion for summary judgment. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONNELL BOYCE,

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No. 2:14-cv-1743 KJM KJN P

Plaintiff,
v.

ORDER

MICHAEL FOX, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding through counsel. On February 8, 2018, defendant

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Wong filed a motion to modify the scheduling order to extend the deadline for discovery and

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dispositive motions, due to the pendency of defendant’s motion for summary judgment alleging

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plaintiff failed to exhaust his administrative remedies. Defendant requests extension of the

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discovery deadline because the discovery deadline expires on February 9, 2018, and the

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dispositive motions deadline expires on May 4, 2018, and plaintiff has not yet been deposed.

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Defense counsel emailed plaintiff’s counsel to ask whether counsel would stipulate to resetting

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the discovery and dispositive motions deadlines so that defendant Wong could take plaintiff’s

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deposition if the pending motion is denied, but plaintiff’s counsel would not so stipulate. (ECF

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No. 58 at 2 n.1.)

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“The district court is given broad discretion in supervising the pretrial phase of litigation.”
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). “The schedule may be modified

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‘if it cannot reasonably be met despite the diligence of the party seeking the extension.’”

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Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting

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Johnson, 975 F.2d at 607).

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The pending summary judgment motion addresses only the issue of exhaustion of

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administrative remedies and does not address the merits of plaintiff’s underlying claims.

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Defendant demonstrates good cause and diligence to extend the discovery and dispositive

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motions deadlines. Defendant’s motion is granted. If defendant’s motion for summary judgment

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on the issue of exhaustion is denied, the court will issue a revised scheduling order to provide

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new deadlines for discovery and dispositive motions on the merits.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendant Wong’s motion (ECF No. 58) is granted;

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2. The discovery and dispositive motions deadlines set in the October 17, 2017

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scheduling order (ECF No. 54) are vacated; and
3. The court will issue a revised scheduling order, if appropriate, following resolution of

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the pending motion for summary judgment.

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Dated: February 21, 2018

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/boyc1743.16b

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