(PS) Manning v. United States ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY L. MANNING, No. 2:19-cv-00494-TLN-AC 12 Plaintiff, 13 v. ORDER 14 UNITED STATES OF AMERICA, 15 Defendant. 16 17 Plaintiff Anthony L. Manning (“Plaintiff”) is proceeding in this action pro se. The matter 18 was referred to a United States Magistrate Judge pursuant to Local Rule 302(c)(21). 19 On December 10, 2020, the magistrate judge filed findings and recommendations herein 20 which were served on all parties and which contained notice to all parties that any objections to 21 the findings and recommendations were to be filed within twenty (20) days. (ECF No. 77.) On 22 December 21, 2020, Plaintiff filed Objections to the Findings and Recommendations. (ECF No 23 78.) Defendant filed a Response to the objections on December 28, 2020. (ECF No. 79.) 24 This Court reviews de novo those portions of the proposed findings of fact to which 25 objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore 26 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see 27 also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). As to any portion of the proposed 28 findings of fact to which no objection has been made, the Court assumes its correctness and 1 decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th 2 Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Britt v. Simi 3 Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 4 Having reviewed the file under the applicable legal standards, the Court finds the Findings 5 and Recommendations to be supported by the record and by the magistrate judge’s analysis. 6 In his Objections to the Findings and Recommendations, Plaintiff concedes the magistrate 7 judge’s recommendation “is sound,” but nevertheless argues he was denied due process because 8 of the Court shutdown caused by the COVID-19 virus and seeks an order modifying the initial 9 Scheduling Order (see ECF No. 9 at 2–3) to revert proceedings in this matter to the pre-discovery 10 stage. (ECF No. 78 at 2–3.) Yet Plaintiff fails to advance any argument showing how the Court 11 shutdown affected his due process rights or impacted his ability to oppose the Motion for 12 Summary Judgment currently before this Court. Furthermore, because Plaintiff did not raise any 13 concerns regarding the Court shutdown until after the issuance of Findings and Recommendations 14 on Defendant’s Motion for Summary Judgment and nearly a year after the shutdown was 15 effected, Plaintiff’s objections are untimely. Thus, to the extent Plaintiff seeks to reopen 16 discovery in order to identify an expert witness for purposes of defeating Defendant’s Motion for 17 Summary Judgment, Plaintiff fails to demonstrate he has exercised due diligence in seeking the 18 modification and therefore fails to establish good cause exists to modify the Scheduling Order. 19 See Fed. R. Civ. P. 16(b)(4); see also Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 20 (9th Cir. 1992) (“Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party 21 seeking the amendment.”). Therefore, to the extent he moves to modify the Scheduling Order 22 (ECF No. 78 at 2–3), Plaintiff’s Motion is DENIED. Based on these reasons, Plaintiff’s 23 objections are overruled. 24 Accordingly, IT IS HEREBY ORDERED that: 25 1. The Findings and Recommendations filed December 10, 2020 (ECF No. 77), are 26 adopted in full; 27 /// 28 /// 1 2. To the extent Plaintiff’s Objections to the Findings and Recommendations may be 2 construed as a Motion to Modify the Scheduling Order (ECF No. 9), Plaintiff’s Motion (ECF No. 3 78) is DENIED; 4 3. Defendant’s Motion for Summary Judgment (ECF No. 70) is GRANTED; and 5 4. The Clerk of the Court is directed to enter Judgment for Defendant and close this case. 6 IT IS SO ORDERED. 7 DATED: February 5, 2021 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28