(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., (AS MODIFIED BY THE COURT) 18 Defendant. Action Filed: January 25, 2018 19 20 INTRODUCTION 21 The parties, In Pro Se Plaintiff David Avila, and Defendant California Highway Patrol 22 (CHP) Officer Mark McMahon, through counsel, hereby jointly stipulate, as set forth below, to an 23 extension of the currently scheduled discovery and trial related dates to allow Plaintiff Avila to 24 complete deposition of Defendant Ofc. McMahon and allow parties to adequately prepare for 25 trial. Due to the unprecedented COVID-19 pandemic, the State of California is under an 26 emergency order, affecting the operations of CHP. Additionally, due the recent increase of the 27 rate of infections, the Governor has made additional modifications to the emergency order, 28 1 making impractical for In Pro Se Plaintiff to complete deposition of Defendant Ofc. McMahon 2 prior to the close of discovery. 3 RECITALS/GROUND FOR RELIEF 4 The district court is required to enter a pretrial scheduling order “within the earlier of 90 5 days after any defendant has been served with the complaint or 60 days after any defendant has 6 appeared.” Fed. R. Civ. P. 16(b)(2). The scheduling order “controls the course of the action 7 unless the court modifies it.” Fed. R. Civ. P. 16(d); See Johnson v. Mammoth Recreations, Inc., 8 975 F.2d 604, 610 (9th Cir. 1992). Orders entered before the final pretrial conference may be 9 modified by motion upon a showing of “good cause.” Fed. R. Civ. P. 16(b)(4). As the Ninth 10 Circuit explained: Rule 16(b)’s “good cause” standard primarily considers the diligence of the 11 party seeking the amendment. The district court may modify the pretrial schedule if it cannot 12 reasonably be met despite the diligence of the party seeking the extension. Johnson, supra, 975 13 F.2d at 609 (internal quotation marks, citations omitted). A party may establish good cause by 14 showing: 15 (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 16 Rule 16 deadline occurred or will occur, notwithstanding [his or 17 her] diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or 18 anticipated at the time of the Rule 16 scheduling conference; and (3) that [he or she] was diligent in seeking amendment of the Rule 19 16 order, once it became apparent that he or she could not comply with the order. 20 21 Hood v. Hartford Life & Accident Ins. Co., 567 F.Supp.2d 1221, 1224 (E.D. Cal. 22 2008) (citation omitted). 23 Good cause exists to justify a modification. On February 7, 2020, parties stipulated to 24 continuance of discovery and trial related dates. (ECF 72.) Due to the industrial injury of 25 Defendant Ofc. McMahon, parties required additional time to complete discovery including 26 deposition of Defendant. On February 10, 2020, the Court entered its order continuing discovery 27 and trial related dates (ECF 73.) On April 20, 2020, the Court entered the stipulated order 28 1 modifying discovery order as a result of the Governor’s unprecedented COVID-19 open-ended 2 emergency order and stay at home order. (ECF 76) 3 It was anticipated by the parties that the COVID-19 pandemic would have subsided by July 4 2020. However, the pandemic has worsen, with increased infections rates in the state affecting the 5 operations of CHP. Additionally, due to the recent civil unrest, Ofc. McMahon was not available 6 at an earlier date for deposition. Parties had agreed to a July 8, 2020 deposition, anticipating 7 subsidence of the COVID-19 pandemic. 8 Therefore, due to the ongoing COVID-19 pandemic, the completion of discovery by the 9 current completion date of July 10, 2020 is not possible. In Pro Se Plaintiff is in the high risk age 10 that is under advisement to avoid unnecessary travel. Thus the completion of deposition of 11 Defendant Ofc. McMahon is impractical under the current conditions. Without the deposition of 12 Defendant Ofc. McMahon, parties cannot adequately prepare for trial. 13 Therefore, as good cause exist, parties agree to this stipulation to continue discovery and 14 trial related dates. 15 FOR THE FORGOING REASONS, AND GOOD CAUSE THEREIN, THE PARTIES 16 STIPULATE AND AGREE TO THE FOLLOWING: 17 1. Discovery completion date shall be continued from July 10, 2020 to September 11, 18 2020; a brief mid-litigation joint statement shall be filed no later than fourteen (14) days prior to 19 close of discovery; 20 2. Discovery Motion completion date shall be continued from June 29, 2020 to 21 September 4, 2020; 22 3. Expert Discovery completion date shall be continued from July 24, 2020 to 23 September 25, 2020 (Parties have exchange expert disclosure); 24 4. All law and motion completion date shall be continued from August 21, 2020 to 25 October 2, 2020; 26 5. Final Pretrial conference from September 25, 2020 to October 16, 2020 at 11:00 a.m. 27 before District Judge John A. Mendez. Pretrial statements shall be filed in accordance to Local 28 Rules 284 and 282; 1 6. Trial date is reset to January 11, 2021 at 9:00 a.m. before Judge John A. Mendez. 2 IT IS SO STIPULATED. 3 Dated: July 10, 2020 4 /s/_________________________________ David A Avila, In Pro Se 5 6 7 Dated: July 19, 2020 California Office of the Attorney General 8 9 /s/___________________________ JULIO A. HERNANDEZ 10 Deputy Attorney General Attorney for Defendant Mark McMahon 11 12 13 ORDER (AS MODIFIED BY THE COURT) 14 The Court finds good cause to continue discovery and trial related dates, and adjust 15 scheduling order as follows: 16 1. All discovery shall be completed by September 11, 2020; A brief mid-litigation joint 17 statement shall be filed no later than fourteen (14) days prior to close of discovery; 18 2. Discovery motions to compel shall be heard no later than September 4, 2020; 19 3. Expert Discovery shall be completed no later than September 25, 2020; 20 4. All law and motion, except as to discovery, shall be completed no later October 2, 21 2020; 22 5. The final pretrial conference is set before District Court Judge John A. Mendez on 23 October 16, 2020 at 11:00 a.m. Pretrial statements shall be filed in accordance to Local Rules 284 24 and 282; 25 26 27 28 1 6. A jury trial is reset for January 11, 2021 at 9:00 a.m. before District Judge John A. 2 Mendez. 3 4 IT IS SO ORDERED 5 Dated: July 13, 2020 /s/ John A. Mendez________________________ 6 UNITED STATES DISTRICT COURT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28