(PC) Gomes v. Mathis ( 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 DIANA ESQUIVEL, State Bar No. 202954 Deputy Attorney General 4 1300 I Street, Suite 125 P.O. Box 944255 5 Sacramento, CA 94244-2550 Telephone: (916) 210-7320 6 Facsimile: (916) 322-8288 E-mail: Diana.Esquivel@doj.ca.gov 7 Attorneys for Defendant Lotersztain 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 SACRAMENTO DIVISION 11 12 LAWRENCE E. GOMES, No. 2:19-cv-01499 KJM-DMC 13 Plaintiff, STIPULATION AND ORDER TO 14 EXTEND SCHEDULING DEADLINES v. TO EXTEND DEADLINES BY NINETY 15 DAYS 16 DAVID M. MATHIS, et al., Action Filed: September 22, 2017 17 Defendants. 18 19 Under Federal Rule of Civil Procedure 16(b)(4) and Local Rule 143, Plaintiff pro se, 20 Lawrence Gomes, and Defendant Lotersztain stipulate to and request a ninety-day extension of 21 the scheduling deadlines set out in the July 17, 2020 Order. (ECF No. 59.) This second request 22 for an extension is needed because the parties require more time to complete discovery in light of 23 the continuing COVID-19 pandemic that has hindered the parties’ ability to complete fact 24 discovery, including taking Plaintiff’s deposition. 25 When an act must be done within a specified time, the court may, for good cause, extend 26 the time with or without motion or notice if the court acts, or if a request is made, before the 27 original time expires. Fed. R. Civ. P. 6(b)(1)(A). A scheduling order may be modified only upon 28 a showing of good cause and by leave of Court. Id. 16(b)(4); see, e.g., Johnson v. Mammoth 1 Recreations, Inc., 975 F.2d 604, 609 (describing the factors a court should consider in ruling on 2 such a motion). In considering whether a party moving for a schedule modification has good 3 cause, the Court primarily focuses on the diligence of the party seeking the modification. 4 Johnson, 975 F.2d at 609 (citing Fed. R. Civ. P. 16 advisory committee’s notes of 1983 5 amendment). “The district court may modify the pretrial schedule ‘if it cannot reasonably be met 6 despite the diligence of the party seeking the amendment.’” Id. (quoting Fed. R. Civ. P. 16 7 advisory committee notes of 1983 amendment). 8 On July 17, 2020, the Court granted the parties’ stipulated request to extend the scheduling 9 deadlines set out in the initial Scheduling Order by six months due to the continuing national 10 pandemic. (See ECF Nos. 46, 59.) Since that time, the parties have continued to conduct 11 discovery. Defendant however has not been able to take Plaintiff’s deposition due to his being in 12 Arizona and in a high-risk group, thus requiring that he continue to shelter in place. Although 13 Defendant seeks to take Plaintiff’s deposition by videoconference, Plaintiff does not have access 14 to reliable internet or telephone access that will allow him to make a remote appearance from 15 home. Defense counsel has been searching for a reporting service that will accommodate an in- 16 person deposition near Plaintiff’s location, but has been unable to locate a service near Plaintiff’s 17 residence to minimize his traveling in light of his high-risk factors. Defense counsel is now 18 searching for a business center near Plaintiff from where he can appear remotely for his 19 deposition with remote appearances by the reporter and defense counsel. Also, Defendant may 20 need to conduct additional discovery, including third-party subpoenas, if new information is 21 disclosed at Plaintiff’s deposition. Plaintiff also seeks additional time to conduct fact discovery 22 that includes obtaining his relevant and most recent medical records. Further, Plaintiff seeks a 23 ninety-day extension because he may become unavailable for a period of several weeks. 24 Plaintiff’s provider has advised him that he needs to undergo a stent-related surgical procedure in 25 the near future, and Plaintiff wishes to avoid any conflicts with the deadlines here. 26 / / / 27 / / / 28 1 Based on the foregoing, the parties agree to and request that the Court extend the 2 scheduling deadlines for an additional ninety days as follows: Complete non-expert discovery by 3 February 2, 2021; disclose expert witnesses by March 1, 2021; complete expert discovery by May 4 1, 2021; and file dispositive motions by June 28, 2021. 5 IT IS SO STIPULATED. 6 Dated: October 29, 2020 Respectfully submitted, 7 XAVIER BECERRA 8 Attorney General of California PETER A. MESHOT 9 Supervising Deputy Attorney General 10 /s/ Diana Esquivel 11 DIANA ESQUIVEL 12 Deputy Attorney General Attorneys for Defendant Lotersztain 13 14 Dated: October 29, 2020 /s/ Larry Gomes (as authorized 10/29/20) 15 LAWRENCE G. GOMES 16 Plaintiff pro se 17 LA2019501633 18 34513454.docx 19 20 21 22 23 24 25 26 27 28 1 ORDER 2 Good cause appearing, the parties’ stipulated request to extend the scheduling deadlines by 3 | ninety days is GRANTED. The scheduling deadlines are extended as follows: 4 Complete non-expert discovery by February 2, 2021 5 Disclose expert witnesses by March 1, 2021 6 Complete expert discovery by May 1, 2021 7 File dispositive motions by June 28, 2021 8 In all other respects, the December 16, 2019 Scheduling Order (ECF No. 53) remains in full 9 | force and effect. 10 IT IS SO ORDERED. 11 Dated: October 30, 2020 Sx