IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 3, 2010
CHARLES E. WALKER, PLAINTIFF,
A. KARELAS, DEFENDANT.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. On August 27, 2010, defense counsel filed a motion requesting the modification of the scheduling order in this case. In that motion, defense counsel explains that he has been placed on medical leave and that replacement counsel has been unable to meet the August 31, 2010 deadline for the filing of defendant's pre-trial statement. Counsel also indicates a concern that his replacement counsel may be unable to be adequately prepared to try this case by the current trial date of October 18, 2010. Accordingly, defendant seeks a modification of the scheduling order, including a continuance of the trial date in this action.
On September 1, 2010, plaintiff filed an opposition to defendant's motion in which he requests the court deny defendant any extensions of time.
A scheduling order cannot be modified "except upon a showing of good cause." Fed. R. Civ. P. 16(b). Good cause is present when the party requesting modification has been diligent but nevertheless is unable to meet the timetable set forth by the court. See Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). Here, the undersigned is cognizant of the time constraints faced by defendant's recent replacement counsel. The undersigned has inquired as to the availability of other trial dates in the near future before the assigned district judge. However, no trial dates are available that would avoid a lengthy continuance. Defendant has not established good cause for a lengthy continuance of the trial, particularly in light of the fact that this action was filed in 2007. Accordingly, the undersigned is unable to grant defense counsel's request for a continuance of the trial date. However, good cause appearing, the court will grant the defense request for additional time to file defendant's pre-trial statement.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Defense counsel's August 27, 2010 motion to modify the scheduling order in this case (Doc. No. 63) is granted to the extent it seeks additional time to file defendant's pre-trial statement and denied with respect to the request to continue the trial date;*fn1 and
2. Defense counsel shall file defendant's pre-trial statement in this case on or before September 17, 2010. Defense counsel is cautioned that no further extensions of time will be granted for this purpose.