Anderson v. Virga et al

Filing 134

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/23/2020 GRANTING 131 Motion to Continue Trial and Trial Confirmation Hearing Dates; VACATING trial confirmation hearing set on 2/7/2020 and jury trial set on 3/20/2020; WITHDRAWING 130 Ord er and Writ of Habeas Corpus Ad Testificandum; SETTING a trial confirmation hearing before the district judge on 9/4/2020 at 10:00 a.m. in Courtroom No. 3 and a jury trial to begin on 10/26/2020 at 1:30 p.m. in Courtroom No. 3 before United States District Judge Kimberly J. Mueller. (cc: OTCD) (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERIC ZACHARY ANDERSON,
Plaintiff,

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No. 2:15-cv-1148-KJM-EFB P

v.

ORDER

TIM VIRGA, et al,
Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. A trial confirmation hearing is set for February 7, 2020, and a jury trial is

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scheduled to begin on March 20, 2020. ECF No. 129 at 10. On January 5, 2020, defendant

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moved to continue both dates due to the recent unavailability of his liability expert – Benjamin

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Tisa – caused by a medical emergency. ECF No. 131. Plaintiff filed an opposition, arguing that

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this expert had not previously been identified, and thus, would not be permitted to testify at trial.

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ECF No. 132 at 1. Plaintiff also expressed his preference “to get to trial as soon as possible.” Id.

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at 2. Defendant filed a reply. ECF No. 133. For the reasons stated below, defendant’s motion to

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continue the trial and trial confirmation hearing dates is granted.

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In the Pretrial Order, dated December 27, 2019, the court granted defendant additional

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time to promptly identify his expert witnesses. ECF No. 129 at 6. Defendant did so by way of

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his motion to continue, filed within nine days of the Pretrial Order. Plaintiff’s contention that Mr.

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Tisa would not be permitted to testify at trial, therefore, lacks merit. Further, the court notes that
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this case began nearly five years ago (ECF No. 1), but the docket reveals no intentional delay of

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the proceedings by any party. Given the sudden and serious health condition of defendant’s

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expert, defendant’s motion is well-founded and there is good cause to continue both the trial and

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trial confirmation hearing dates.

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Accordingly, IT IS ORDERED that:

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1. Defendant’s Motion to Continue Trial and Trial Confirmation Hearing Dates (ECF

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No. 131) is GRANTED.
2. The trial confirmation hearing set before the district judge on February 7, 2020 is

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VACATED and the Order and Writ of Habeas Corpus ad Testificandum issued on

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December 27, 2019 for plaintiff’s attendance at the trial confirmation hearing (ECF

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No. 130) is WITHDRAWN.

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3. The Clerk is directed to serve a copy of this order (1) by mail to the Warden,

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California Medical Facility, and (2) by fax to the Litigation Coordinator, California

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Medical Facility.

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4. The jury trial set before the district judge on March 20, 2020 is VACATED.

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5. The dates are continued as follows:

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a. A trial confirmation hearing is set before the district judge on September 4,
2020, at 10:00 a.m. in Courtroom No. 3, 15th Floor.

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b. Jury trial is scheduled to begin on October 26, 2020, at 1:30 p.m. in Courtroom

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No. 3, 15th Floor, before United States District Judge Kimberly J. Mueller.

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6. Writs of habeas corpus ad testificandum to provide for plaintiff’s appearance at the

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trial confirmation hearing and jury trial will issue at a later date.
DATED: January 23, 2020.

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