(PC) Timberland v. Mascarenas ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RONALD TIMBERLAND, 1:16-cv-00922-LJO-GSA-PC 12 Plaintiff, ORDER GRANTING DEFENDANT MASCARENAS’S MOTION TO MODIFY 13 vs. SCHEDULING ORDER (ECF No. 49.) 14 G. MASCARENAS, et al., ORDER EXTENDING DISPOSITIVE 15 Defendants. MOTIONS DEADLINE NUNC PRO TUNC TO JANUARY 6, 2020 16 ORDER DEEMING DEFENDANT’S 17 MOTION FOR SUMMARY JUDGMENT TIMELY FILED ON JANUARY 6, 2020 18 19 20 21 I. BACKGROUND 22 Ronald Timberland (“Plaintiff”) is a state prisoner proceeding pro se and in forma 23 pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. This action now 24 proceeds with Plaintiff’s Second Amended Complaint filed on June 20, 2018, against defendant 25 G. Mascarenas (Correctional Counselor I) for failure to protect Plaintiff in violation of the Eighth 26 Amendment.1 (ECF No. 26.) 27 28 1 On October 12, 2018, the court issued an order dismissing all other claims and defendants from this action, based on Plaintiff’s failure to state a claim. (ECF No. 30.) 1 On January 9, 2019, the court issued a Discovery and Scheduling Order establishing 2 pretrial deadlines for the parties, including a deadline of September 9, 2019, for the filing of 3 pretrial dispositive motions. (ECF No. 37.) On June 18, 2019, the court modified the scheduling 4 order and extended the dispositive motions deadline to December 9, 2019. (ECF No. 42.) 5 On December 23, 2019, Defendant filed a motion to modify the current scheduling order 6 to extend the dispositive motions deadline to January 6, 2020. (ECF No. 49.) Plaintiff has not 7 opposed the motion. 8 II. MOTION TO MODIFY SCHEDULING ORDER 9 Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 10 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, 11 Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the 12 modification of a scheduling order must generally show that even with the exercise of due 13 diligence, they cannot meet the requirement of the order. Id. The court may also consider the 14 prejudice to the party opposing the modification. Id. If the party seeking to amend the scheduling 15 order fails to show due diligence the inquiry should end and the court should not grant the motion 16 to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). 17 Defendant requests an extension of the dispositive motions deadline until January 6, 18 2020. Defense counsel declares that she is preparing a motion for summary judgment, but 19 completion of the motion was delayed because defendant Mascarenas requested changes in her 20 declaration in support of the motion, and as of December 23, 2019, defense counsel had not 21 received the additional documents and signed declaration needed to make the changes. (Decl. of 22 Kelli Hammond, ECF No. 49-1 ¶¶ 7-10.) 23 Defense counsel has shown that despite her best efforts she was unable to file Defendant’s 24 motion for summary judgment before the expiration of the current dispositive motions deadline. 25 On January 6, 2020, Defendant’s motion for summary judgment was filed. (ECF No. 51.) 26 Therefore, good cause appearing, Defendant’s motion to modify the scheduling order shall be 27 granted and the dispositive motions deadline shall be extended nunc pro tunc to January 6, 2020. 28 III. CONCLUSION 1 Based on the foregoing, IT IS HEREBY ORDERED that: 2 1. Defendant Mascarenas’s motion to modify the court’s Discovery and Scheduling 3 Order, filed on December 23, 2019, is GRANTED; 4 2. The deadline for filing and serving pretrial dispositive motions is extended nunc 5 pro tunc to January 6, 2020; 6 3. Defendant’s motion for summary judgment is deemed timely filed on January 6, 7 2020; and 8 4. All other provisions of the court’s January 9, 2019, Discovery and Scheduling 9 Order remain the same. 10 IT IS SO ORDERED. 11 12 Dated: January 9, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28