Johnson v. State of Nevada et al

Filing 54

ORDER that 52 Motion for 11-Day Extension of Remaining Deadlines is GRANTED in part. The following deadlines are further extended as follows: Motions for summary judgment shall be filed no later than April 29, 2016. The parties shall file a joint pretrial order on or before May 27, 2016. Signed by Magistrate Judge Peggy A. Leen on 4/28/16. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FRANCIS JOHNSON,

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Case No. 2:14-cv-01425-GMN-PAL
Plaintiff,

ORDER

v.

(Mot. Ext. Time – Dkt. #52)

STATE OF NEVADA, et al.,
Defendants.

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This matter is before the Court on the Motion for 11 Day Extension of Remaining

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Scheduling Order Deadlines (Dkt. #52) filed by Defendants Miguel Flores-Nava, Jennifer Nash,

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and Sheryl Foster (the “NDOC Defendants”) on April 4, 2016. This Motion is referred to the

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undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 and 1-9 of the Local Rules of

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Practice. The Court has considered the Motion. Plaintiff Francis Johnson did not oppose the

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Motion and the time for doing so has now passed.

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Mr. Johnson is a prisoner in the custody of the Nevada Department of Corrections

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(“NDOC”) and is proceeding in this action pro se and in forma pauperis. On June 17, 2014,

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Johnson filed his complaint in the Eighth Judicial District Court of Nevada.

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Defendants subsequently removed the case to this Court. See Petition for Removal (Dkt. #1). Mr.

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Johnson requested leave of the Court to amend his complaint. See Mot.to Amend/Correct

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Complaint (Dkt. #7). Upon screening the Amended Complaint (Dkt. #19), the Court determined

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that it stated a First Amendment retaliation claim under 28 U.S.C. § 1983 and granted the Motion

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to Amend. See Screening Order (Dkt. #18).

The NDOC

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On August 21, 2015, the Court entered a Scheduling Order (Dkt. #39) directing that

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discovery in this action “shall be completed ninety days from the date of this order which is

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November 18, 2015.” Id. ¶ 3(a). Pursuant to Mr. Johnson’s request, see Pl.’s Mot. to Extend Time
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(Dkt. #41), the discovery deadlines were extended for 90 days. See Order (Dkt. #46). The Order

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set the following new deadlines: (1) discovery shall be completed on or before February 16, 2016;

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(2) any discovery motions shall be filed no later than March 2, 2016; (3) motions for summary

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judgment shall be filed no later than March 17, 2016; and (4) the parties shall file a joint pretrial

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order on or before April 18, 2016. Id. at 4. Thus, discovery in this matter is now closed.

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On the last day to file discovery motions, March 2, 2016, the NDOC Defendants filed a

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Motion for 30-Day Extension of Remaining Scheduling Order Deadlines (Dkt. #48). The NDOC

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Defendants asserts that they were waiting for Mr. Johnson’s responses to their interrogatories,

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requests for production of documents, and requests for admissions, and they would need to review

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those responses to determine whether any additional discovery may be necessary and whether any

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discovery related motions may be appropriate. The Court granted the NDOC Defendants request:

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The following deadlines stated in the Scheduling Order (Dkt. #39) and extended by
Order (Dkt. #46) are extended for an additional 30 days:
a. Discovery motions shall be filed no later than April 4, 2016.
b. Motions for summary judgment shall be filed no later than April 18, 2016.
c. The parties shall file a joint pretrial order on or before May 18, 2016.

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See Order (Dkt. #50). The NDOC Defendants’ current Motion (Dkt. #52) requests an 11-day

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extension of these scheduling order deadlines.

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When a request is made to modify a discovery plan and scheduling order before the

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expiration of the deadlines therein and before the final pretrial order is entered, a district court may

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extend the discovery deadlines upon a showing of “good cause.” Coleman v. Quaker Oats Co.,

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232 F.3d 1271, 1294 (9th Cir. 2000). The good cause standard “primarily considers the diligence

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of the party seeking the amendment.” Id. Discovery extensions may be allowed if the deadlines

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“cannot reasonably be met despite the diligence of the party seeking the extension.” Id. In addition

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to showing good cause, when a party requests an extension of a scheduling order deadline less than

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21-days before its expiration, the party must also establish that its failure to act was the result of

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excusable neglect. See LR 26-4(a) (stating that a showing of “excusable neglect” is in addition to

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the good cause required by LR 6-1 and Fed. R. Civ. P. 16). Lastly, any motion or stipulation to

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extend a deadline or to reopen discovery must comply with Local Rules 26-4 and 6-1, and include

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the following:

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(a) A statement specifying the discovery completed;
(b) A specific description of the discovery that remains to be
completed;
(c) The reasons why the deadline was not satisfied or the remaining
discovery was not completed within the time limits set by the
discovery plan; and,
(d) A proposed schedule for completing all remaining discovery.

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See LR 26-4.

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In the current Motion (Dkt. #52), the NDOC Defendants inform the Court that they are still

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waiting for Mr. Johnson to respond to their requests for production of documents, although they

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acknowledge they have now received his responses to their interrogatories and requests for

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admissions. Id. at 3–4. In early March 2016, the NDOC Defendants’ counsel informed Mr.

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Johnson they wished to discuss certain identified responses to interrogatories and requests for

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admission and remaining discovery issues in a phone conference. Id. at 4 (citing Ex. 2 (Dkt. #52-

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2) (Mar. 14, 2016 Letter)). Counsel for the NDOC Defendants spoke with Mr. Johnson by

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telephone on March 21st. Id. During the teleconference, Mr. Johnson stated that he had mailed a

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response to Defendants’ requests for production of documents and also agreed to serve Defendants

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with supplemental responses to all disputed interrogatories and requests for admissions. Id. As of

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April 4th when the Motion was filed, the NDOC Defendants had not received Johnson’s

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outstanding responses, although they acknowledge that those documents could be in the mail. Id.

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The NDOC Defendants therefore ask the Court to extend the remaining deadlines for an additional

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11 days so they can confirm receipt of any supplemental responses and determine whether any

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additional discovery or discovery related motions may be appropriate. Id. at 5.

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The Court finds that the NDOC Defendants have met their burden of showing good cause

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for an extension of the remaining scheduling order deadlines and excusable neglect for not filing

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their motion at least 21 days prior to the expiration of the deadline. However, while the Motion

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was pending, the proposed extended deadline for filing discovery motions passed without the

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NDOC Defendants filing a discovery motion. The Court, therefore, grants the motion in part and
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extends the following deadlines: (1) motions for summary judgment shall be filed no later than

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April 29, 2016; and (2) the parties shall file a joint pretrial order on or before May 27, 2016. No

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further extensions will be granted absent compelling circumstances and a strong showing of good

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cause that the deadline could not be met within the extended time allowed despite the exercise of

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due diligence.

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Accordingly,

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IT IS ORDERED:

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1. Defendants Miguel Flores-Nava, Jennifer Nash, and Sheryl Foster’s Motion for 11 Day

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Extension of Remaining Scheduling Order Deadlines (Dkt. #52) is GRANTED IN

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PART.

The following deadlines stated in the Scheduling Order (Dkt. #39) and

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extended by Orders (Dkt. #46, #50) are further extended as follows:

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a. Motions for summary judgment shall be filed no later than April 29, 2016.

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b. The parties shall file a joint pretrial order on or before May 27, 2016.

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2. No further extensions will be granted absent compelling circumstances and a strong

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showing of good cause that the deadline could not be met within the extended time

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allowed despite the exercise of due diligence.

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Dated this 28th day of April, 2016.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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