(PC) Hammler v. Lyons ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ALLEN HAMMLER, 1:19-cv-01650-AWI-GSA-PC 11 Plaintiff, ORDER GRANTING DEFENDANT LUCAS’S EX PARTE APPLICATION TO 12 vs. MODIFY SCHEDULING ORDER (ECF No. 51.) 13 J. LYONS, et al., ORDER EXTENDING DISCOVERY 14 Defendants. DEADLINE UNTIL MARCH 18, 2022 FOR LIMITED PURPOSE 15 16 I. BACKGROUND 17 Allen Hammler (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 18 with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s 19 First Amended Complaint filed on April 3, 2019, against defendant A. Lucas (Appeals 20 Coordinator) (“Defendant”) for violation of freedom of speech under the First Amendment.1 21 (ECF No. 12.) 22 On August 26, 2021, the court issued a Discovery and Scheduling Order establishing 23 pretrial deadlines for the parties, including a deadline of January 26, 2022 to complete discovery. 24 (ECF No. 41.) On January 25, 2022, Defendant Lucas filed an ex parte application to modify the 25 Discovery and Scheduling Order to extend the discovery deadline for the limited purpose of 26 enabling Defendant to take Plaintiff’s deposition. (ECF No. 51.) 27 28 1 On July 27, 2021, the court dismissed all other claims from this case based on Plaintiff’s failure to state a claim. (ECF No. 36.) 1 II. MOTION TO MODIFY SCHEDULING ORDER 2 Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 3 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, 4 Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the 5 modification of a scheduling order must generally show that even with the exercise of due 6 diligence, they cannot meet the requirement of the order. Id. The court may also consider the 7 prejudice to the party opposing the modification. Id. If the party seeking to amend the scheduling 8 order fails to show due diligence the inquiry should end and the court should not grant the motion 9 to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). 10 The court finds good cause to grant Defendant’s ex parte application and extend the 11 discovery deadline to March 18, 2022, for the limited purpose of enabling Defendant Lucas to 12 take Plaintiff’s deposition. Defendant’s motion to modify the Discovery and Scheduling Order 13 shall be granted. 14 III. CONCLUSION 15 Based on the foregoing, IT IS HEREBY ORDERED that: 16 1. Defendant’s ex parte application to modify the court’s Discovery and Scheduling 17 Order, filed on January 25, 2022, is GRANTED; 18 2. The discovery deadline is extended from January 26, 2022 to March 18, 2022 for 19 the limited purpose of enabling Defendant to take Plaintiff’s deposition; and 20 3. All other provisions of the court’s August 26, 2021 Discovery and Scheduling 21 Order remain the same. 22 IT IS SO ORDERED. 23 24 Dated: January 28, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 25 26 27 28