Plaintiff is a state prisoner proceeding with an action under 42 U.S.C. § 1983. On March 17, 2008, the court adopted the findings and recommendations that had been issued in this case and denied the motion for summary judgment as to defendants Woodford and Kanan.*fn1 See Docket No. 84. This case was set to go to trial on October 19, 2009, but the court vacated the trial date and has yet to set another. Defendants have recently filed a motion for leave to file a supplemental motion for summary judgment, asking that the claims against Woodford and Kanan be dismissed in light of a change of counsel and on the basis of facts and argument omitted from the initial motion for summary judgment. Plaintiff has moved to re-schedule a date for trial. He also has filed a motion in limine.
The motion to file a supplemental motion for summary judgment is not well taken. According to the declaration of defendants' current counsel, "prior counsel's motion for summary judgment indicates that the focus was on prior counsel's analysis and perception that Plaintiff's allegations against Woodford and Dr. Kanan were insufficient as a matter of law to raise a triable issue." Decl. of E. Hung ¶ 8 (Docket No. 110-2). Current counsel states that her own analysis and evidence recently obtained from defendants "will address the Court's concerns" that led the court to deny the initial motion for summary judgment. Counsel also states that she has been assigned to this case since September 2008, so nearly sixteen months before seeking leave to file a "supplemental" motion for summary judgment. See id. ¶ 3.*fn2
Counsel for defendants does not explain why so long a period of time passed before she identified new arguments and evidence as the possible basis of summary dismissal of the remaining claims. Presumably, had the October 19, 2009 trial date not been vacated, these arguments would not have been presented at all. The trial date was vacated to accommodate both defendants (see id. ¶ 6); without a showing of excusable neglect or similar good cause, that accommodation should not be parlayed into a potential windfall relieving defendants of complying with the court's schedule in this case. The motion to file a supplemental motion for summary judgment will be denied.
The court will grant plaintiff's motion to set a new trial date. Plaintiff has already filed his pre-trial statement. See Docket No. 104. The court will order defendants to submit their pre-trial statements within thirty days of the entry of this order.
Finally, plaintiff has filed a motion in limine. See Docket No. 103. The motion will be denied without prejudice to plaintiff's renewing the motion before the trial judge, according to the schedule to be identified in the pretrial order.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendants' motion for leave to file a supplemental motion for summary judgment (Docket No. 110) is denied;
2. Plaintiff's motion to re-schedule a trial date (Docket No. 112) is granted. Trial is set to commence in Courtroom 7 before U.S. District Judge Morrison C. England on June 7, 2010, at 9:00 a.m;
3. Defendants shall submit pretrial statements no later than thirty days after the entry of this order; and
4. Plaintiff's motion in limine (Docket No. 103) is denied ...