Barba de la Torre et al v. Icenhower et al

Filing 95

ORDER Denying 89 Motion to Extend Litigation Dates and Denying 94 Motion Requesting a Stay. Signed by Magistrate Judge Barbara Lynn Major on 8/18/11. (All non-registered users served via U.S. Mail Service)(ecs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MARTHA MARGARITA BARBA DE LA
TORRE and ALEJANDRO DIAZ,
Plaintiffs,
v.
JERRY L. ICENHOWER, et al.,
Defendants.

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Case No. 09cv1161-BTM (BLM)
ORDER DENYING MOTION TO
EXTEND LITIGATION DATES AND
MOTION REQUESTING A STAY
[ECF Nos. 89, 94]

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On July 28, 2011, Defendant Donna Icenhower filed a motion to continue all pending

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deadlines and conference dates, as well as two expired deadlines, for six months. ECF No. 89.

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In support, Mrs. Icenhower states that she cannot adequately represent herself until her husband

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is released from prison and can assist her in this litigation. Id. at 2-3. Pursuant to this Court’s

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briefing schedule (ECF No. 90), the Hobert Icenhower Defendants timely filed a response in

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opposition to the motion on August 4, 2011 (ECF No. 91), and the Plaintiffs timely filed a

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response in support of the motion on August 4, 2011 (ECF No. 92). On August 5, 2011,

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Defendant Jerry Icenhower filed a motion requesting a stay of all proceedings until January 21,

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2012, his projected prison release date. ECF No. 94. In support, Mr. Icenhower states that

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prison restrictions impede his ability to participate in the discovery and pretrial process and he

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is therefore unable to properly represent himself while incarcerated. Id. at 2.
09cv1161-BTM (BLM)

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Once a Rule 16 scheduling order is issued, dates set forth therein may be modified only

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“for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); see also ECF No. 73 at 7

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(stating that dates “will not be modified except for good cause shown”). The Rule 16 good cause

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standard focuses on the “reasonable diligence” of the moving party. Noyes v. Kelly Servs., 488

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F.3d 1163, 1174 n.6 (9th Cir. 2007); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir.

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2000) (stating Rule 16(b) scheduling order may be modified for “good cause” based primarily

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on diligence of moving party). Although “the focus of the inquiry is upon the moving party’s

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reasons for seeking modification,” a court also may consider the “existence or degree of

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prejudice to the party opposing the modification . . . .” Johnson v. Mammoth Recreations, Inc.,

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975 F.2d 604, 609 (9th Cir. 1992). However, “[i]f [the moving] party was not diligent, the

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inquiry should end.” Id.

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Here, the Court issued a Rule 16 scheduling order on October 1, 2010, setting forth

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discovery and pretrial deadlines. ECF No. 73. Subsequently, in March 2011, Plaintiffs requested

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that all pretrial dates “be modified and extended for a minimum of 90 and a maximum of 120

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days” due to Mr. Icenhower’s inability or unwillingness to cooperate prior to the resolution of his

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criminal case. ECF No. 85. Four months after the Court granted Plaintiffs’ request and continued

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all dates approximately 90 days (ECF No. 86), Defendants Donna and Jerry Icenhower filed the

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instant motions. Because Defendants Donna and Jerry Icenhower are attempting to further

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modify the Court’s pretrial dates, they must establish good cause justifying their request.

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Mrs. Icenhower asserts that she cannot afford an attorney and her “only resource” is her

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currently incarcerated husband, “who could explain what happened and which documents can

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assist in [their] case preparation.” ECF No. 89 at 3. Mr. Icenhower, however, is not expected

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to be released for approximately six months, and Mrs. Icenhower states that “he is denied access

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to all of the documents needed for this case” while he is in prison. Id. Mrs. Icenhower therefore

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argues that she will be “precluded from properly representing [herself]” unless the Court grants

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her request for a six-month continuance of all pretrial dates. Id. at 3-4. Similarly, Mr. Icenhower

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states that he cannot effectively defend himself until he is released from prison and has access

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to “pertinent and relevant discovery information,” including documents, court records, and

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09cv1161-BTM (BLM)

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potential witnesses. ECF No. 94 at 2.

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Plaintiffs do not oppose Mrs. Icenhower’s proposed six-month continuance. ECF No. 92.

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Counsel for Plaintiffs states that Mr. Icenhower’s testimony is “essential” to the prosecution of

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Plaintiffs’ claims and the defense of the Hobert Icenhower Defendants’ counterclaim, but it has

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been exceedingly difficult to make arrangements to depose Mr. Icenhower since his incarcera-

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tion. ECF No. 92, Gaston Decl. ¶¶ 5-7, 9-12. The Hobert Icenhower Defendants, on the other

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hand, vehemently oppose any further continuance. ECF No. 91. Although counsel for Plaintiffs

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avers that “Plaintiffs have not delayed in the prosecution of this matter” (ECF No. 92, Gaston

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Decl. ¶ 11), the Hobert Icenhower Defendants stress that Plaintiffs have neither taken any

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depositions nor designated any experts even though “[i]t has been over two years since this case

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was filed.” ECF No. 91 at 2.

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Defendants Donna and Jerry Icenhower do not represent, nor does the Court find, that

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they have acted with reasonable diligence in moving this case forward. See Noyes, 488 F.3d at

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1174; Coleman, 232 F.3d at 1294. This case commenced in May 2009, and Mrs. Icenhower, who

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has represented herself from the outset of this action, cannot now rely on Mr. Icenhower’s

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incarceration to free her from fulfilling her pretrial obligations. Similarly, Mr. Icenhower’s

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incarceration does not justify his non-compliance with this Court’s Orders, particularly because

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he did not self-surrender until March 7, 2011. See ECF No. 85, Gaston Decl. ¶ 3. Although both

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Mr. Icenhower and counsel for Plaintiffs assert that Mr. Icenhower’s incarceration makes

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conducting discovery difficult, neither party sufficiently explains precisely how or why they are

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incapable of engaging in discovery and moving this case forward. The Court acknowledges that

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Mr. Icenhower’s incarceration complicates this litigation, but the parties are not prohibited from

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deposing Mr. Icenhower while he is in prison. Not only did this Court permit Plaintiffs to take Mr.

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Icenhower’s deposition on shortened notice prior to the commencement of his custodial

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sentence, the Court also explicitly stated that Plaintiffs may file a motion to depose Mr.

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Icenhower in custody. ECF No. 84. Although Defendants Donna and Jerry Icenhower, along

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with Plaintiffs, suggest that this action will proceed more easily once Mr. Icenhower is released,

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Mr. Icenhower’s January 21, 2012 release date is not guaranteed, and this Court declines to

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09cv1161-BTM (BLM)

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grant the parties another lengthy extension premised upon an uncertain future.

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The Court finds that Defendants Donna and Jerry Icenhower have failed to show the

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requisite reasonable diligence and good cause to modify the Court’s scheduling order. Johnson,

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975 F.2d at 609 (“[i]f [the moving] party was not diligent, the inquiry should end.”). Accordingly

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their respective motions to extend the pretrial dates and/or stay the case are DENIED. All dates

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and deadlines remain as currently set. See ECF No. 86.

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IT IS SO ORDERED.
DATED: August 18, 2011

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BARBARA L. MAJOR
United States Magistrate Judge

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09cv1161-BTM (BLM)