(PC) Miller v. Carter ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL NEAL MILLER, No. 2:21-cv-01981-KJM-EFB P 12 Plaintiff, 13 v. ORDER 14 RUBY CARTER, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought pursuant to 42 18 U.S.C. § 1983. Plaintiff asks the court to reopen the discovery period for 90 days. ECF No. 20. 19 Defendants do not oppose the motion. ECF No. 21. 20 Federal Rule of Civil Procedure 16(b)(4) provides: “A schedule may be modified only for 21 good cause and with the judge’s consent.” Courts considering a request to modify a schedule 22 under Rule 16(b)(4) look primarily to the whether the party seeking modification could not 23 reasonably meet the deadline despite his diligence. Johnson v. Mammoth Recreations, 975 F.2d 24 604, 609 (9th Cir. 1992). While the focus is primarily on the moving party’s diligence, “the 25 existence or degree of prejudice to the party opposing the motion might supply additional reasons 26 to deny” the requested modification. Id. 27 Plaintiff’s application demonstrates that he has acted with diligence, but delays have 28 arisen due to mistake, an informal extension agreed on by the parties, plaintiff’s disability, and 1 || various obstacles presented by incarceration and the COVID-19 pandemic. ECF No. 20. 2 Good cause being shown, it is hereby ORDERED that plaintiff's September 2, 2022 3 || motion to modify of the discovery schedule (ECF No. 20) is GRANTED as follows: 4 1. The parties may conduct discovery until December 30, 2022. Any motions necessary to 5 compel discovery shall be filed by that date. All requests for discovery pursuant to Fed. R. 6 Civ. P. 31, 33, 34, or 36 shall be served not later than November 30, 2022. 7 2. Ifplaintiff seeks leave to amend the complaint, he must file a motion to amend no later 8 than December 30, 2022.! 9 3. Dispositive motions shall be filed on or before March 1, 2023. 10 4. Unless otherwise ordered, all motions to dismiss, motions for summary judgment, 1] discovery motions, and motions made under the authority of Fed. R. Civ. P. 7, 11, 12, 15, 12 41, 55, 56, 59 and 60, and Local Rule (“L.R.”) 110 shall be briefed in accordance with 13 L.R. 230(1). Failure to timely file an opposition or statement of no opposition to such a 14 motion may be deemed a waiver of opposition to the motion and may result in the 15 imposition of sanctions. L.R. 230(1). Oppositions to all other motions need to be filed only 16 as directed by the court. 17 5. The court will schedule pretrial proceedings, if necessary, upon the resolution of any 18 pretrial motions filed. Requests to modify this schedule will be looked upon with disfavor 19 and must be supported by good cause pursuant to Fed. R. Civ. P. 16(b). 20 || Dated: September 27, 2022 21 La? "ulhiz □ LAC”? EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 23 24 | —___ ' Any motion to amend must be accompanied by a proposed amended complaint that is rewritten 23 or retyped so that it is complete in itself without reference to any earlier filed complaint. L.R. 220. 26 || This is because an amended complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the earlier filed complaint no longer serves any function in the case. 27 || See Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter being treated thereafter as non-existent.’”) (quoting Loux v. 28 | Rhay, 375 F.2d 55, 57 (9th Cir. 1967)).