(PC) Gomes v. Mathis ( 2021 )

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 PROPOSED 14 ORDER TO EXTEND SCHEDULING v. DEADLINES TO EXTEND DEADLINES 15 BY NINETY DAYS 16 DAVID M. MATHIS, et al., Action Filed: September 22, 2017 17 Defendants. 18 19 Plaintiff, a former state prisoner proceeding pro se, brings this civil rights action 20 under 42 U.S.C. § 1983. Under Federal Rule of Civil Procedure 16(b)(4) and Local Rule 143, 21 Plaintiff pro se, Lawrence Gomes, and Defendant Lotersztain stipulate to and request a ninety-day 22 extension of the scheduling deadlines set out in the October 20, 2020 Order. (ECF No. 61.) This 23 third request for an extension is needed because the parties require more time to complete 24 discovery in light of the continuing COVID-19 pandemic that has hindered the parties’ ability to 25 complete fact discovery, including taking Plaintiff’s deposition. 26 When an act must be done within a specified time, the court may, for good cause, 27 extend the time with or without motion or notice if the court acts, or if a request is made, before 28 the original time expires. Fed. R. Civ. P. 6(b)(1)(A). A scheduling order may be modified only 1 upon a showing of good cause and by leave of Court. Id. 16(b)(4); see, e.g., Johnson v. Mammoth 2 Recreations, Inc., 975 F.2d 604, 609 (describing the factors a court should consider in ruling on 3 such a motion). In considering whether a party moving for a schedule modification has good 4 cause, the Court primarily focuses on the diligence of the party seeking the modification. 5 Johnson, 975 F.2d at 609 (citing Fed. R. Civ. P. 16 advisory committee’s notes of 1983 6 amendment). “The district court may modify the pretrial schedule ‘if it cannot reasonably be met 7 despite the diligence of the party seeking the amendment.’” Id. (quoting Fed. R. Civ. P. 16 8 advisory committee notes of 1983 amendment). 9 On July 17, 2020, the Court granted the parties’ stipulated request to extend the 10 scheduling deadlines set out in the initial Scheduling Order by six months due to the continuing 11 national pandemic. (See ECF Nos. 46, 59.) It should be noted that, at the time, the full scope and 12 expected duration of the pandemic and concomitant public health measures and restrictions were 13 unknown by public health and government officials, let alone the parties and defense counsel. As 14 such, on October 29, 2020, the parties requested, and the Court granted, a ninety-day extension of 15 the scheduling deadlines due the ongoing pandemic, Plaintiff’s then-medical condition and 16 concerns with being exposed to COVID-19, and the need to obtain Plaintiff’s more recent 17 medical records. (See ECF Nos. 60-61.) Since that time, the parties have continued to conduct 18 discovery that included Defendant propounding additional written discovery to ascertain the 19 identities of Plaintiff’s medical providers since his release from prison. Defendant has not 20 received responses to her discovery to subpoena the current medical records, nor has she been 21 able to take Plaintiff’s deposition due to his high-risk status if exposed to COVID-19. 22 Distribution of the COVID-19 vaccine did not commence until recently. Although 23 Plaintiff has several medical conditions that make him eligible to receive the COVID-19 vaccine 24 earlier than other groups, he is within an age group that is still not receiving the vaccine in 25 Arizona, where Plaintiff currently resides. At the present time, it not yet known when the 26 pandemic-related risks and restrictions will resolve such that Plaintiff’s deposition can be taken 27 and completed. In addition to the ongoing pandemic, Plaintiff’s is currently experiencing and 28 1 being treated for diabetic-related symptoms that is further impairing Plaintiff’s ability to complete 2 the discovery needed here. 3 Based on the foregoing, the parties agree to and request that the Court extend the 4 scheduling deadlines for an additional ninety days as follows: Complete non-expert discovery by 5 May 3, 2021; disclose expert witnesses by June 1, 2021; complete expert discovery by August 2, 6 2021; and file dispositive motions by September 29, 2021. 7 IT IS SO STIPULATED. 8 Dated: February 2, 2021 Respectfully submitted, 9 XAVIER BECERRA 10 Attorney General of California PETER A. MESHOT 11 Supervising Deputy Attorney General 12 /s/ Diana Esquivel 13 DIANA ESQUIVEL 14 Deputy Attorney General Attorneys for Defendant Lotersztain 15 16 Dated: February 2, 2021 /s/ Larry Gomes (as authorized 2/2/21) 17 LAWRENCE G. GOMES 18 Plaintiff pro se 19 LA2019501633 20 34791383.docx 21 22 23 24 25 26 27 28 1 ORDER 2 Good cause appearing, the parties’ stipulated request to extend the scheduling 3 | deadlines by ninety days is GRANTED. The scheduling deadlines are extended as follows: 4 Complete non-expert discovery by May 3, 2021 5 Disclose expert witnesses by June 1, 2021 6 Complete expert discovery by August 2, 2021 7 File dispositive motions by September 29, 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: February 9, 2021 Sx