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SMITH v. MONTEMAYOR, 2:13-cv-1070 AC P. (2014)

Court: District Court, E.D. California Number: infdco20140916a32 Visitors: 15
Filed: Sep. 12, 2014
Latest Update: Sep. 12, 2014
Summary: ORDER ALLISON CLAIRE, Magistrate Judge. Plaintiff is a state prisoner proceeding pro se in an action pursuant to 42 U.S.C. 1983. Defendant Montemayor answered the complaint on February 7, 2014. ECF No. 18. The Discovery and Scheduling Order (DSO) was filed on February 13, 2014, setting June 6, 2014 as the discovery deadline and September 29, 2014 as the deadline for the filing of pretrial dispositive motions. ECF No. 19. On May 23, 2014, defendant filed a motion to modify the deadlines of
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ORDER

ALLISON CLAIRE, Magistrate Judge.

Plaintiff is a state prisoner proceeding pro se in an action pursuant to 42 U.S.C. § 1983. Defendant Montemayor answered the complaint on February 7, 2014. ECF No. 18. The Discovery and Scheduling Order (DSO) was filed on February 13, 2014, setting June 6, 2014 as the discovery deadline and September 29, 2014 as the deadline for the filing of pretrial dispositive motions. ECF No. 19.

On May 23, 2014, defendant filed a motion to modify the deadlines of the DSO. Defendant maintains that at that point, just prior to the discovery cut-off date, although diligent in having attempted to meet the deadline, she did not believe she had adequate time to notice and depose individuals who might have relevant knowledge who might be identified in discovery responses from plaintiff by the June 6, 2014 deadline; nor would she be able to bring any motion to compel by that time. ECF No. 21 at 3-4. She avers that at the time of bringing the instant motion, within two months of issuance of the DSO, defendant had served interrogatories and document requests upon plaintiff but had yet to receive discovery responses and intended to meet and confer with plaintiff about any anticipated deficiencies in the responses. Defendant's counsel submits a declaration, indicating that plaintiff had, at the time of the instant motion, yet to respond to the April 2, 2014 interrogatories served upon him on behalf of the defendant. Declaration of Kenny Nguyen, ECF No. 21-1 at ¶ 3. Plaintiff has filed no response to defendant's motion.

Defendant seeks a six-month extension of the fact discovery deadline until December 14, 2014 and a six-month extension of the pretrial motion deadline, until April 29, 2015.

Pursuant to Federal Rule of Civil Procedure 16(b)(4), a schedule may only be modified with the judge's consent and for "good cause." The "Rule 16 `good cause' inquiry `primarily considers the diligence of the party seeking the [modification of the order].'" United States v. Vacante, 717 F.Supp.2d 992, 1019 (E.D. Cal. 2010) (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). In this instance, the undersigned finds that the deadlines of the DSO "`cannot reasonably be met despite the diligence of the party seeking the extension.'" Johnson, 975 F.2d at 609 (quoting Fed.R.Civ.P. 16 advisory committee's notes (1983 amendment).

The court finds that defendant has demonstrated diligence sufficient to support good cause for an extinction of the discovery and pretrial motion deadlines, but that an additional four months should provide adequate time to complete discovery and to file any pretrial motions.

Accordingly, IT IS ORDERED that defendant's motion to modify the Discovery and Scheduling Order deadlines (ECF No. 21) is granted in part as follows:

1. The deadline for discovery and for filing any motion to compel is hereby extended until October 15, 2014; and

2. The pretrial motion deadline is re-set for January 15, 2015.

Source:  Leagle

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