Marshall v. Galvanoni et al

Filing 104

ORDER signed by District Judge Kimberly J. Mueller on 6/20/19 GRANTING 96 Motion to Vacate. The parties are to meet and confer and file either a stipulation proposing new pretrial deadlines or a joint status report reflecting their independent positions on new deadlines within 14 days. The 6/28/2019 hearing on the motion to vacate is VACATED. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN MARSHALL,

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Plaintiff,

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Case No. 2:17-cv-00820-KJM-CKD

v.

ORDER

DANIEL P. GALVANONI, et al.,

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Defendants.

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Plaintiff moves to vacate the discovery and pretrial deadlines in the court’s pretrial

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scheduling order, citing defendants’ refusal to participate in discovery while a motion to stay has

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been pending before the court. Mot., ECF No. 96. The court has now denied defendants’ motion

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to stay. ECF No. 103. Defendants did not oppose or file a statement of non-opposition to plaintiff’s

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motion to vacate and the court finds the motion is appropriate for resolution without hearing. E.D.

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Cal. R. 230(g). Accordingly, as explained below, GRANTS plaintiff’s motion to vacate discovery

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and pretrial deadlines.

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The court will modify dates set forth in a scheduling order only upon the moving

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party’s showing of good cause. Fed. R. Civ. P. 16(b)(4); Johnson v. Mammoth Recreations, Inc.,

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975 F.2d 604, 608 (9th Cir. 1992). The moving party must show it was diligent in its attempts to

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complete discovery in a timely manner. Johnson, 975 F.2d at 609. “Although the existence or

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degree of prejudice to the party opposing the modification might supply additional reasons to deny

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a motion, the focus of the inquiry is upon the moving party’s reasons for seeking

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modification. . . . If that party was not diligent, the inquiry should end.” Id. (citations omitted).

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Here, plaintiff has established good cause for modifying the scheduling order.

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Plaintiff’s counsel describes her efforts to pursue discovery in this matter and defendants’

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“steadfast[] refus[al] to produce any of their agents for deposition . . . . [or] answer any of Plaintiff’s

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requests for admissions or interrogatories” while their motion to stay is pending before the court.

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Mot. at 3−5. She further explains that although defendants have agreed to extend fact discovery,

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expert discovery and the dispositive motion deadline, defendants demand new deadlines that “do[]

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not take into account the uncertainty of when the court will rule on Defendant’s motion for a stay

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and what that ruling will be, and do[] not allow a reasonable amount of time for Plaintiff to conduct

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discovery.” Id. at 5. Plaintiff’s counsel’s representations are supported by a declaration, ECF No.

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96-1, and are unrebutted in light of defendants’ non-opposition.

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The court GRANTS the motion to vacate the fact discovery, expert discovery and

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dispositive motion hearing deadlines in the pretrial scheduling order, ECF No. 52, as amended in

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ECF No. 63. Further, because the court has denied defendants’ motion to stay, the court ORDERS

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the parties to meet and confer and file either a stipulation proposing new pretrial deadlines or a joint

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status report reflecting their independent positions on new deadlines within fourteen (14) days. The

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June 28, 2019 hearing on the motion to vacate is VACATED.

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IT IS SO ORDERED.
DATED: June 20, 2019.

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UNITED STATES DISTRICT JUDGE

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