(PC) Penton v. Hubard ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY PENTON, No. 2:11-cv-0518 TLN KJN P 12 Plaintiff, 13 v. ORDER 14 LAYTON JOHNSON, JR., et al., 15 Defendants. 16 17 Plaintiff’s motion to modify the scheduling order came on regularly for hearing January 18 10, 2023, by Zoom. Pierce A. MacConaghy, Buzz Harrison Frahn and Dawson Honey appeared 19 for plaintiff. Nicole M. Cahill appeared for defendant L. Johnson. Upon review of the motion 20 and the documents in support and opposition, upon hearing the arguments of counsel and good 21 cause appearing therefor, THE COURT FINDS AND ORDERS AS FOLLOWS. 22 “The district court is given broad discretion in supervising the pretrial phase of litigation.” 23 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation and internal 24 quotation marks omitted). Rule 16(b) provides that “[a] schedule may be modified only for good 25 cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Good case requires a showing of 26 due diligence. Johnson, 975 F.2d at 607. “The schedule may be modified ‘if it cannot reasonably 27 be met despite the diligence of the party seeking the extension.’” Zivkovic v. Southern California 28 Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting Johnson, 975 F.2d at 607). 1 After explaining the shortage of district judges in the Eastern District and the resulting 2 congested court dockets, counsel were informed that Judge Nunley has no earlier available trial 3 dates. Thus, plaintiff’s motion to advance the trial date is denied. 4 On the other hand, the court finds defense counsel’s high risk pregnancy constitutes good 5 cause to continue the jury trial date. See Cal. Clovis, Ltd. Liab. Co. v. Sierra Vista Realty Ltd. 6 Liab. Co., 2021 U.S. Dist. LEXIS 102011, at *2-3 (E.D. Cal. May 25, 2021) (finding stipulation 7 established good cause to modify scheduling order in part due to counsel’s maternity leave). 8 Nevertheless, the court is cognizant that plaintiff has waited many years for his day in court. 9 Counsel estimated that trial in this matter could take three to five days. 10 Following discussion concerning defense counsel’s trial schedule for October, the 11 undersigned continued the jury trial to September 18, 2023, with the understanding that if defense 12 counsel’s October trial schedule cleared up, and October trial dates before the district court 13 remain available, the court would entertain a stipulation to continue the trial to a date in October. 14 That said, defense counsel was put on notice that if difficulties arise with the baby’s birth or 15 maternity leave is extended for some reason, defense counsel must make arrangements to have 16 alternate counsel available to try the case because the court is not inclined to continue the trial 17 again. During her maternity leave, defense counsel should also arrange to have alternate counsel 18 available for communications with opposing counsel and trial preparation. 19 Finally, the deadlines for filing pretrial statements remain as scheduled: January 16, 2023, 20 for plaintiff; February 15, 2023, for defendant Johnson (unless the parties want to stipulate to 21 briefly extend those dates). L.R. 281. 22 Accordingly, IT IS HEREBY ORDERED that: 23 1. Plaintiff’s motion to modify the scheduling order to advance the jury trial date (ECF 24 No. 296) is denied; 25 2. Defendant Johnson’s motion to continue the trial date (ECF No. 300) is granted; 26 3. The final pretrial conference set for June 15, 2023, before the district court, is vacated; 27 4. The August 21, 2023 jury trial date is continued to September 18, 2023, at 9:00 a.m., in 28 Courtroom #2, before the Honorable Troy L. Nunley; and ] 5. Final pretrial conference/trial readiness conference is set for September 7, 2023, at 2:00 2 | p.m. 3 || Dated: January 11, 2023 ' Foci) Aharon 5 KENDALL J. NE /pent0518.0ah UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28