IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 14, 2010
RAY ANTHONY STEVENS, PLAINTIFF,
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Presently before the court is plaintiff's motion to extend the July 2, 2010 discovery completion deadline (Dkt. No. 19), which is set forth in the court's Status (Pretrial Scheduling) Order (Dkt. No. 17 at 3). Plaintiff is proceeding without counsel, or pro se, and in forma pauperis. Plaintiff's motion, filed on July 2, 2010, seeks an extension of this deadline by 20 days. The court previously construed plaintiff's motion as an ex parte application to extend the discovery completion date, and permitted defendant to file a written opposition or statement of non-opposition to plaintiff's application. (Dkt. No. 20.) Defendant filed its timely opposition on July 13, 2010. (Dkt. No. 21.)
Pursuant to Federal Rule of Civil Procedure 16(b)(4), "[a] schedule may be modified only for good cause and with the judge's consent." See also Zivkovic v. So. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) ("In general, the pretrial scheduling order can only be modified 'upon a showing of good cause.'") (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992)). A district court may modify the pretrial schedule "if it cannot reasonably be met despite the diligence of the party seeking the extension." Johnson, 975 F.2d at 609 (citations and quotation marks omitted). If the party seeking the modification "was not diligent, the inquiry should end." Id. In summarizing this good cause standard, a district judge of the Northern District of California recently stated: "Generally, in determining whether there is good cause to permit an extension the court will primarily look to the (1) diligence of the party seeking the extension, but may also consider (2) the explanation for the failure to complete discovery in a timely fashion; and (3) potential prejudice in allowing the extension." Missing Link, Inc. v. eBay, Inc., No. C-07-04487 RMW, 2010 WL 34268, at *2 (N.D. Cal. Jan. 6, 2010) (unpublished).*fn1
Here, plaintiff has provided no information about his efforts to conduct discovery during the pendency of this action, or his diligence in that regard. Defendant asserts that plaintiff has propounded no discovery, but that plaintiff has responded to defendant's discovery requests. Plaintiff explains in his application that he has not been able to conduct discovery within the time allotted because his efforts have been delayed: (1) "due to illness and hospitalization of his teenage son," and (2) because "Plaintiff has been busily engaged [sic] other family matters such as Funerals [sic] and caring for his elderly mother." (Dkt. No. 19 at 1.) Defendant does not argue that it would be prejudiced by a brief extension of the discovery completion deadline.
The undersigned has significant concerns regarding plaintiff's lack of demonstrated diligence in this case. However, in an abundance of caution in light of plaintiff's pro se status,*fn2 and given no assertion of prejudice by defendant, the undersigned will grant plaintiff a limited extension of time to conduct discovery. Plaintiff will be permitted 20 days from the date of this order in which to "complete" discovery as that term is defined in the Status (Pretrial Scheduling) Order. (Dkt. No. 17 at 3.) No further requests by plaintiff for extensions of the discovery completion deadline will be entertained.*fn3
Because of this extension of the discovery completion deadline, the undersigned must also extend the non-discovery law and motion completion deadline, which is presently set for August 20, 2010. (Dkt. No. 17 at 2.) The new law and motion completion deadline will be September 9, 2010.*fn4 All other dates set forth in the Status (Pretrial Scheduling) Order will remain in effect.
Accordingly, IT IS HEREBY ORDERED that:
1. All discovery shall be conducted as to be "completed," as that term is defined in the Status (Pretrial Scheduling) Order, within 20 days of the date of this order. No further requests for extensions by plaintiff will be considered.
2. All law and motion, except as to discovery, shall be conducted so as to be "completed," as that term is defined in the Status (Pretrial Scheduling) Order, by September 9, 2010.
3. All other dates in the Status (Pretrial Scheduling) Order shall remain in effect.
IT IS SO ORDERED.