(PC) Dosio v. Odeluga ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ELMER DOSIO, 1:19-cv-00675-ADA-GSA-PC 12 Plaintiff, ORDER GRANTING PARTIES’ JOINT MOTION TO MODIFY SCHEDULING 13 vs. ORDER (ECF No. 52.) 14 N. ODELUGA, et al., ORDER EXTENDING DISCOVERY 15 Defendants. DEADLINE AND DISPOSITIVE MOTIONS FILING DEADLINE FOR 16 ALL PARTIES 17 New Discovery Deadline: 03/16/23 18 New Dispositive Motions Deadline: 05/16/23 19 20 Elmer Dosio (“Plaintiff”) is a state prisoner proceeding with counsel and in forma 21 pauperis with this civil rights action under 42 U.S.C. § 1983. This case proceeds with Plaintiff’s 22 Second Amended Complaint against defendant Licensed Vocational Nurse (“LVN”) Elma 23 Fernandez1 (“Defendant”) for failure to provide adequate medical care in violation of the Eighth 24 Amendment. (ECF No. 18.)2 25 26 1 Sued as E. Frandez. 27 2 On April 29, 2021, the court issued an order dismissing all other claims and defendants 28 from this case based on Plaintiff’s failure to state a claim. (ECF No. 20.) 1 On September 14, 2021, the Court issued a Discovery and Scheduling Order, establishing 2 pretrial deadlines for the parties, including a discovery deadline of February 14, 2022 and a 3 deadline for filing dispositive motions of April 14, 2022. (ECF No. 32.) On December 14, 2022, 4 Defendant filed a motion for summary judgment based on Plaintiff’s failure to exhaust 5 administrative remedies. (ECF No. 35.) On December 15, 2021, the parties requested that the 6 deadlines be vacated and reset pending resolution of that motion. (ECF No. 36.) On January 7, 7 2022, the Court granted that motion. (ECF No. 41.) On September 22, 2022, the Court denied 8 Defendant’s motion for summary judgment, (ECF No. 50), and re-opened discovery on 9 September 23, 2022, (ECF No. 51). The close of discovery was reset to January 30, 2023 and the 10 dispositive motion deadline is now set for March 30, 2023. (Id.) 11 On January 20, 2023, Defendant Fernandez and Plaintiff filed a joint motion to modify 12 the scheduling order. (ECF No. 52.) 13 II. MOTION TO MODIFY SCHEDULING ORDER 14 Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 15 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, 16 Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the 17 modification of a scheduling order must generally show that even with the exercise of due 18 diligence, they cannot meet the requirement of the order. Id. The court may also consider the 19 prejudice to the party opposing the modification. Id. If the party seeking to amend the scheduling 20 order fails to show due diligence the inquiry should end and the court should not grant the motion 21 to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). 22 The parties request to modify the Discovery and Scheduling Order to extend the discovery 23 and dispositive motion deadlines set forth in the Court’s order reopening discovery and setting 24 new deadlines, filed on September 23, 2022. (ECF No. 51.) The Court finds good cause to 25 extend the discovery deadline from January 30, 2023 to March 16, 2023, and the dispositive 26 motions filing deadline from March 30, 2023 to May 16, 2023. Based on the stipulation the 27 motion to modify the scheduling order, filed by the parties on January 20, 2023, shall be granted. 28 III. CONCLUSION 1 Based on the foregoing and good cause appearing, IT IS HEREBY ORDERED that: 2 1. The parties’ joint motion to modify the Court’s scheduling order, filed on January 3 20, 2023, is GRANTED; 4 2. The deadline for conducting discovery is extended from January 30, 2023 to 5 March 16, 2023 for all parties to this action; 6 3. The deadline for filing pretrial dispositive motions is extended from March 30, 7 2023 to May 16, 2023 for all parties to this action; and 8 4. All other provisions of the court’s September 14, 2021 Discovery and Scheduling 9 Order remain the same. 10 IT IS SO ORDERED. 11 12 Dated: January 23, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28