(PS) Avila v. McMahon ( 2020 )

1 XAVIER BECERRA, State Bar No. 118517 Attorney General of California 2 PETER A. MESHOT, State Bar No. 117061 Supervising Deputy Attorney General 3 JULIO A. HERNANDEZ, State Bar No. 260508 Deputy Attorney General 4 1300 I Street, Suite 125 P.O. Box 944255 5 Sacramento, CA 94244-2550 Telephone: (916) 210-6238 6 Fax: (916) 322-8288 E-mail: Julio.Hernandez@doj.ca.gov 7 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, 2-18-cv-00163 JAM AC (PS) 14 Plaintiff, STIPULATION AND ORDER TO 15 CONTINUE DISCOVERY DEADLINES v. AND TRIAL RELATED DATES DUE TO 16 COVID-19 RESTRICTIONS 17 M D MCMAHON, ET AL., Action Filed: January 25, 2018 18 Defendant. 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 RECITALS/GROUND FOR RELIEF 2 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 14 Rule 16 deadline occurred or will occur, notwithstanding [his or her] diligent efforts to comply, because of the development of 15 matters which could not have been reasonably foreseen or 16 anticipated at the time of the Rule 16 scheduling conference; and (3) that [he or she] was diligent in seeking amendment of the Rule 17 16 order, once it became apparent that he or she could not comply with the order. 18 19 Hood v. Hartford Life & Accident Ins. Co., 567 F.Supp.2d 1221, 1224 (E.D. Cal. 20 2008) (citation omitted). 21 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 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 Therefore, as good cause exist, parties agree to this stipulation to continue discovery and 9 trial related dates. 10 FOR THE FORGOING REASONS, AND GOOD CAUSE THEREIN, THE PARTIES 11 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 2. Discovery Motion completion date shall be continued from April 30, 2020 to June 29, 16 2020; 17 3. Expert Discovery completion date shall be continued from May 24, 2020 to July 24, 18 2020 (Parties have exchange expert disclosure); 19 4. All law and motion completion date shall be continued from June 22, 2020 to August 20 21, 2020; 21 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 1 6. Trial date shall be continued from September 14, 2020 to November 16, 2020 at 9:00 2 a.m. before Judge John A. Mendez, as set by Order, ECF 73. 3 IT IS SO STIPULATED. 4 Dated: April __, 2020 5 _________________________________ David A Avila, In Pro Se 6 7 8 Dated: April __, 2020 California Office of the Attorney General 9 10 ___________________________ JULIO A. HERNANDEZ 11 Deputy Attorney General Attorney for Defendant Mark McMahon 12 13 14 ORDER 15 The Court finds good cause to continue discovery and trial related dates, and adjust 16 scheduling order as follows: 17 1. All discovery shall be completed by July 10, 2020; A brief mid-litigation joint 18 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 21, 2020; 23 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 1 6. A jury trial is set to commence on November 16, 2020 at 9:00 a.m. before District 2 Judge John A. Mendez, as set by Order, ECF 73. 3 IT IS SO ORDERED 4 Dated: 4/17/2020 /s/ John A. Mendez________________________ 5 UNITED STATES DISTRICT COURT JUDGE 6 7 SA2018300627 33974752.docx 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28