(PC) McRae v. Dikran ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL SCOTT McRAE, 1:16-cv-01066-NONE-GSA-PC 12 Plaintiff, ORDER APPROVING PARTIES’ STIPULATION TO MODIFY DEADLINES 13 vs. IN COURT’S SCHEDULING ORDER (ECF No. 78.) 14 BAIRAMIAN DIKRAN, et al., Dispositive Motions Deadline: December 2, 2020 15 Defendants. Conditional Deadlines: See Order 16 17 I. BACKGROUND 18 Michael Scott McRae (“Plaintiff”) is a federal prisoner proceeding pro se and in forma 19 pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 20 (1971). This case now proceeds with Plaintiff’s Second Amended Complaint filed on March 9, 21 2018, against defendants Dr. Dikran Bairamian,1 Dr. Kevin Cuong Nguyen, and Dr. David Betts, 22 for inadequate medical care under the Eighth Amendment, and state law claims for medical 23 malpractice and medical battery. (ECF No. 14.) 24 On December 2, 2019, the court issued a Discovery and Scheduling Order establishing 25 pretrial deadlines for the parties, including a discovery deadline of June 2, 2020, and a dispositive 26 27 1 In his original Complaint, Plaintiff referred to this defendant as Dr. Bairamian, Dikran, M.D. 28 (ECF No. 1.) The court entered the defendant’s name as Bairamian Dikran. (Court docket.) In his Answer to the complaint defense counsel clarifies that this defendant’s name is Dikran Bairamian. (ECF No. 32.) 1 motions deadline of August 2, 2020. (ECF No. 35.) On May 20, 2020, the court extended the 2 discovery deadline to October 2, 2020, and the dispositive motions deadline to December 2, 2020. 3 (ECF No. 63.) 4 On September 30, 2020, the parties filed a stipulation and proposed order modifying the 5 deadlines in the court’s Discovery and Scheduling Order. (ECF No. 78.) 6 II. MODIFICATION OF SCHEDULING ORDER 7 Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 8 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, 9 Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the 10 modification of a scheduling order must generally show that even with the exercise of due 11 diligence, they cannot meet the requirement of the order. Id. The court may also consider the 12 prejudice to the party opposing the modification. Id. If the party seeking to amend the scheduling 13 order fails to show due diligence the inquiry should end and the court should not grant the 14 modification. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). 15 Due to the current State of Emergency2 and threat of COVID-19, which continues to 16 impact the parties’ ability to conduct discovery, the parties to this case have proposed the 17 following schedule: 18 1. Depositions of any party to this case, including the filing of any motions to 19 compel, SHALL be completed within 90 days of the Court’s ruling on defendants’ dispositive 20 motions; and 21 2. The dispositive motions deadline shall remain the same – specifically, dispositive 22 motions must still be filed on or before 12/02/20. 23 The court finds good cause to modify the deadlines in the court’s Discovery and 24 Scheduling Order. The parties have shown that even with the exercise of due diligence, they 25 cannot meet the requirements of the order. Therefore, the parties’ stipulation shall be approved 26 and the deadlines shall be modified. 27 28 2 On March 4, 2020, California Governor Gavin Newsom issued Executive Order N-54-20, declaring a State of Emergency as a result of the threat of COVID-19. (Stipulation, ECF No. 73 at 2:7-8.) 1 III. CONCLUSION 2 Based on the foregoing, IT IS HEREBY ORDERED that: 3 1. The parties’ stipulation to modify the court’s Discovery and Scheduling Order, 4 filed on September 30, 2020, is approved in its entirety; 5 2. The deadline for filing and serving pretrial dispositive motions remains the same, 6 December 2, 2020 for all parties to this action; 7 3. Depositions of any party to this case and the filing of any motions to compel shall 8 be completed within 90 days of the Court’s ruling on defendants’ dispositive 9 motions; and 10 4. All other provisions of the court’s December 2, 2019 Discovery and Scheduling 11 Order remain the same. 12 IT IS SO ORDERED. 13 14 Dated: October 2, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28