Avila v. McMahon et al

Filing 76

STIPULATION and ORDER signed by District Judge John A. Mendez on 4/17/2020 ORDERING that all discovery shall be completed by 7/10/2020. Discovery motions to compel shall be heard no later than 6/29/2020. Expert Discovery shall be completed no later t han 7/24/2020. All law and motion, except as to discovery, shall be completed no later than 8/21/2020. The Final Pretrial Conference is set for 9/25/2020 at 10:00 AM and the Jury Trial is set for 11/16/2020 at 09:00 AM, in Courtroom 6 (JAM) before District Judge John A. Mendez. (Kastilahn, A)

1
2
3
4
5
6
7

XAVIER BECERRA, State Bar No. 118517
Attorney General of California
PETER A. MESHOT, State Bar No. 117061
Supervising Deputy Attorney General
JULIO A. HERNANDEZ, State Bar No. 260508
Deputy Attorney General
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendant Mark McMahon

8
9

IN THE UNITED STATES DISTRICT COURT

10

IN AND FOR THE EASTERN DISTRICT OF CALIFORNIA

11
12
13

DAVID ANTHONY AVILA,

14
15

v.

16
17

2-18-cv-00163 JAM AC (PS)
Plaintiff, STIPULATION AND ORDER TO
CONTINUE DISCOVERY DEADLINES
AND TRIAL RELATED DATES DUE TO
COVID-19 RESTRICTIONS

M D MCMAHON, ET AL.,

Action Filed: January 25, 2018
Defendant.

18
19
20

INTRODUCTION

21

The parties, In Pro Se Plaintiff David Avila, and Defendant Officer Mark McMahon,

22

through counsel, hereby jointly stipulate, as set forth below, to an extension of the currently

23

scheduled discovery and trial related dates to allow Plaintiff Avila to complete deposition of

24

Defendant Ofc. McMahon and allow parties to adequately prepare for trial. Due to the

25

unprecedented COVID-19 pandemic, the State of California is under a stay at home order,

26

making impractical for In Pro Se Plaintiff to complete deposition of Defendant Ofc. McMahon

27

prior to the close of discovery.

28
1
Stipulation and Order to Continue Discovery and Trial re COVID-19 (2-18-cv-00163 JAM AC (PS))

1
2

RECITALS/GROUND FOR RELIEF
The district court is required to enter a pretrial scheduling order “within the earlier of 90

3

days after any defendant has been served with the complaint or 60 days after any defendant has

4

appeared.” Fed. R. Civ. P. 16(b)(2). The scheduling order “controls the course of the action

5

unless the court modifies it.” Fed. R. Civ. P. 16(d); See Johnson v. Mammoth Recreations, Inc.,

6

975 F.2d 604, 610 (9th Cir. 1992). Orders entered before the final pretrial conference may be

7

modified by motion upon a showing of “good cause.” Fed. R. Civ. P. 16(b)(4). As the Ninth

8

Circuit explained: Rule 16(b)’s “good cause” standard primarily considers the diligence of the

9

party seeking the amendment. The district court may modify the pretrial schedule if it cannot

10

reasonably be met despite the diligence of the party seeking the extension. Johnson, supra, 975

11

F.2d at 609 (internal quotation marks, citations omitted). A party may establish good cause by

12

showing:

13

(1) that [he or she] was diligent in assisting the court in creating a
workable Rule 16 order; (2) that [his or her] noncompliance with a
Rule 16 deadline occurred or will occur, notwithstanding [his or
her] diligent efforts to comply, because of the development of
matters which could not have been reasonably foreseen or
anticipated at the time of the Rule 16 scheduling conference; and
(3) that [he or she] was diligent in seeking amendment of the Rule
16 order, once it became apparent that he or she could not comply
with the order.

14
15
16
17
18
19
20
21

Hood v. Hartford Life & Accident Ins. Co., 567 F.Supp.2d 1221, 1224 (E.D. Cal.
2008) (citation omitted).
Good cause exists to justify a modification. On February 7, 2020, parties stipulated to

22

continuance of discovery and trial related dates. (ECF 72.) Due to the industrial injury of

23

Defendant Ofc. McMahon, parties required additional time to complete discovery including

24

deposition of Defendant. On February 10, 2020, the Court entered its order continuing discovery

25

and trial related dates (ECF 73.) After a meet and confer, parties agreed to the deposition of

26

Defendant Ofc. McMahon to take place on April 9, 2020. Plaintiff promptly served the notice of

27

deposition.

28
2
Stipulation and Order to Continue Discovery and Trial re COVID-19 (2-18-cv-00163 JAM AC (PS))

1

However, the State of California is under a stay at home order issued by the Governor of

2

California in order to address the current COVID-19 pandemic. Due to the Governor’s

3

unprecedented COVID-19 open ended order, completion of discovery by the current completion

4

date of May 8, 2020 is not possible. In Pro Se Plaintiff is in the high risk age that is under order to

5

avoid unnecessary travel. Thus the completion of deposition of Defendant Ofc. McMahon is

6

impractical under the current conditions. Without the deposition of Defendant Ofc. McMahon,

7

parties cannot adequately prepare for trial.

8
9

Therefore, as good cause exist, parties agree to this stipulation to continue discovery and
trial related dates.

10
11

FOR THE FORGOING REASONS, AND GOOD CAUSE THEREIN, THE PARTIES
STIPULATE AND AGREE TO THE FOLLOWING:

12

1.

Discovery completion date shall be continued from May 8, 2020 to July 10, 2020; A

13

brief mid-litigation joint statement shall be filed no later than fourteen (14) days prior to close of

14

discovery;

15
16
17
18
19
20
21

2.

Discovery Motion completion date shall be continued from April 30, 2020 to June 29,

3.

Expert Discovery completion date shall be continued from May 24, 2020 to July 24,

2020;

2020 (Parties have exchange expert disclosure);
4.

All law and motion completion date shall be continued from June 22, 2020 to August

21, 2020;
5.

Final Pretrial conference from July 31, 2020 to September 25, 2020 at 10:00 a.m.

22

before District Judge John A. Mendez. Pretrial statements shall be filed in accordance to Local

23

Rules 284 and 282;

24
25
26
27
28
3
Stipulation and Order to Continue Discovery and Trial re COVID-19 (2-18-cv-00163 JAM AC (PS))

1
2
3
4

6.

Trial date shall be continued from September 14, 2020 to November 16, 2020 at 9:00

a.m. before Judge John A. Mendez, as set by Order, ECF 73.
IT IS SO STIPULATED.
Dated: April __, 2020

5

_________________________________
David A Avila, In Pro Se

6
7
8
9

Dated: April __, 2020

California Office of the Attorney General

10

___________________________
JULIO A. HERNANDEZ
Deputy Attorney General
Attorney for Defendant Mark McMahon

11
12
13
14
15
16
17
18

ORDER
The Court finds good cause to continue discovery and trial related dates, and adjust
scheduling order as follows:
1.

All discovery shall be completed by July 10, 2020; A brief mid-litigation joint

statement shall be filed no later than fourteen (14) days prior to close of discovery;

19

2.

Discovery motions to compel shall be heard no later than June 29, 2020;

20

3.

Expert Discovery shall be completed no later than July 24, 2020;

21

4.

All law and motion, except as to discovery, shall be completed no later than August

22
23

21, 2020;
5.

The final pretrial conference is set before District Court Judge John A. Mendez on

24

September 25, 2020 at 10:00 a.m. Pretrial statements shall be filed in accordance to Local Rules

25

284 and 282;

26
27
28
4
Stipulation and Order to Continue Discovery and Trial re COVID-19 (2-18-cv-00163 JAM AC (PS))

1
2
3

6.

A jury trial is set to commence on November 16, 2020 at 9:00 a.m. before District

Judge John A. Mendez, as set by Order, ECF 73.
IT IS SO ORDERED

4
5

Dated: 4/17/2020

/s/ John A. Mendez________________________
UNITED STATES DISTRICT COURT JUDGE

6
7
8

SA2018300627
33974752.docx

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
Stipulation and Order to Continue Discovery and Trial re COVID-19 (2-18-cv-00163 JAM AC (PS))