IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
November 10, 2010
JOSEPH B. MATTHEWS, PLAINTIFF,
LAHEY, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
On November 5, 2010, plaintiff asked the court to reconsider the court's ruling on defendants' motion to modify the scheduling order after taking into consideration plaintiff's objections. Plaintiff's objections were docketed on the same day the order granting the motion to modify was granted and, as plaintiff explains, his objections were timely under the mailbox rule. Houston v. Lack, 487 U.S. 266, 270-72, 275 (1988) (situation of prisoners seeking to meet court deadlines is unique; therefore a document may be "filed" on the date that it is given by an inmate to prison authorities for mailing).
Good cause appearing, the court will grant plaintiff's request for reconsideration. The court has now considered plaintiff's objections to the modification of the scheduling order. However, in light of defense counsel's health issues, this court believes good cause existed for the modification granted by this court's October 22, 2010 order. Plaintiff has failed to demonstrate that any prejudice he might suffer as a result of the delay outweighs defense counsel's need for an extension of time.
As for plaintiff's objections to the deposition, plaintiff's objections are untimely. In his July 23, 2010 motion to stay, signed on July 17, 2010, plaintiff requested "a stay of further proceedings, (e.g., deposing of plaintiff, etc.)" (Dkt. No. 47 at 2.) Despite recounting a history of written discovery requests, plaintiff failed to advise the court that plaintiff's deposition had been noticed or that his deposition had been scheduled. (Dkt. No. 47 at 2-3.) Plaintiff was deposed on July 20, 2010, prior to this court's August 5, 2010 order. Plaintiff did not raise any objection that his deposition was unwillingly or involuntarily taken until he filed his objections to defendants' request to modify the scheduling order on October 22, 2010, long after the deposition had taken place. (Dkt. No. 54.) Upon consideration of plaintiff's objections, this court declines to modify the October 22, 2010 order.
Therefore, IT IS HEREBY ORDERED that:
1. Plaintiff's November 5, 2010 request (dkt. no. 57) is granted.
2. This court declines to modify the October 22, 2010 order.
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