IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 4, 2011
DONGWOO JOHN CHANG, M.D., FRCS (C), PLAINTIFF,
CLAIR POMEROY, M.D., ET AL., DEFENDANTS.
Plaintiff, who is proceeding pro se at the present time, has filed a request seeking a lengthy continuance of the hearing of defendants' pending motion for summary judgment. The request is made pursuant to Local Rule 230(f).
The record reflects that defendants' motion was filed and served on November 17, 2010, and noticed for hearing on January 12, 2011. On November 22, 2010, the previously assigned magistrate judge recused herself from the case, vacated the January 12, 2011 hearing date, and directed the Clerk of the Court to reassign the case to another magistrate judge. On December 10, 2010, defendants re-noticed their motion for hearing on January 14, 2011, before the undersigned.
Plaintiff seeks a continuance of the hearing for "at least three months" on the ground that, because of his pro se status, he needs more time for legal research, more time to prepare a written response to the motion, and more time to prepare for the hearing. Plaintiff asserts further that he is trying to obtain new counsel and, if successful, counsel will need time to become familiar with the case. Plaintiff also states that he cannot appear in person during the week of the scheduled hearing because of scheduled surgical and patient care activities but will try to make himself available by telephone, "if requested by the court."
Defendants oppose plaintiff's request for at least three months as excessive and unwarranted. The court agrees. In noticing their motion for a hearing eight weeks after its filing, defendants provided the pro se plaintiff with six weeks to prepare and file opposition, instead of the two weeks permissible under Local Rule 230(c). Moreover, plaintiff's request for continuance was filed just one week prior to the due date of his opposition and does not demonstrate compliance with Local Rule 144, which requires a party to seek to obtain a necessary extension from the court or the other parties in the action "as soon as the need for an extension becomes apparent." Local Rule 144(d).
Plaintiff's belated search for new counsel is even less persuasive as a ground for a continuance of at least three months. Plaintiff's former counsel moved to withdraw as plaintiff's attorney on April 28, 2010, and the motion was granted by the assigned district judge on June 24, 2010. Almost seven months elapsed between April 28, 2010, and November 17, 2010, and almost five months elapsed between June 24, 2010, and November 17, 2010. Plaintiff has had ample time to search for new counsel prior to November 17, 2010.
Defendants have suggested that a one-month continuance should provide plaintiff with sufficient time to prepare a response to their motion or retain new counsel. In the interests of justice, the court will therefore grant plaintiff's request in part. The hearing on the pending motion will be continued to February 18, 2011, and plaintiff's opposition will be due on February 4, 2011. The court does not intend to grant a further extension of time for the filing of plaintiff's opposition, and the hearing will not be continued again except by notice at the request of the moving parties or by minute order of the court arising from a calendar conflict.
Any attorney or party proceeding pro se may appear telephonically at any motion hearing or status conference set before the undersigned. However, the court does not permit a standing request for such appearance. Each time a party wishes to make a telephonic appearance, the party must contact Pete Buzo, courtroom deputy to the undersigned, at least 48 hours prior to the scheduled hearing or status conference to make the required arrangements. A land-line telephone number must be provided at that time. Failure to be available at the time specified at the number provided will constitute a failure to appear.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's request for continuance of hearing (Doc. No. 65) is granted in part;
2. The hearing of defendants' motion for summary judgment (Doc. No. 60) is continued from January 14, 2011, to February 18, 2011, at 10:00 a.m. in Courtroom 27;
3. Plaintiff's opposition shall be filed and served on or before February 4, 2011, and defendants' reply shall be filed and served on or before February 11, 2011; no additional briefing may be filed; and
4. Any party who wishes to appear telephonically at the hearing on February 18, 2011, shall contact Pete Buzo, courtroom deputy, at (916) 930-4128, at least 48 hours prior to the hearing.
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