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Ibanez v. Miller

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 5, 2009

JULIO CESAR IBANEZ, PLAINTIFF,
v.
M. MILLER, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. On January 23, 2009, defendants filed a request to modify the scheduling order. For the reasons explained below, the court modifies the date by which defendants must file a dispositive motion.

A schedule may be modified upon a showing of good cause. Fed. R. Civ. P. 16(b). Good cause exists when the moving party demonstrates he cannot meet the deadline despite exercising due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).

Pursuant to the October 29, 2008, amended scheduling order*fn1 dispositive motions had to be filed no later than February 9, 2009.

Defendants assert that they could not, despite their diligence, timely file a motion for summary judgment because of counsel's work-load. Attached to their request is counsel's declaration asserting that she has deadlines for dispositive motions, pretrial statements and other filings in five cases within about two or three weeks of each other at the end of January 2009 and the beginning of February 2009. She asserts that she did not realize until January 22, 2009, that she would not be able to comply with this court's amended schedule, but she does not explain what happened that date that brought her to that realization. Furthermore, she does not explain what she has done, i.e., how she has been diligent, in an attempt to comply with the filing deadline in this case.

Defendants have failed to demonstrate that there is good cause for modifying the schedule. However, in the interest of managing its docket and possibly eliminating or narrowing issues for trial, the court will extend the time to file a dispositive motion.

Accordingly, defendants have until April 9, 2009, to file and serve a dispositive motion. So ordered.


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