UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
January 28, 2011
DANNY JAMES COHEA,
D. ADAMS, ET AL.,
The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER MODIFYING DISCOVERY AND SCHEDULING ORDER
Amended Discovery Cut-off Date: April 15, 2011
Amended Dispositive Motion Deadline: May 31, 2011
Plaintiff Danny James Cohea ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On January 21, 2011, Defendants Adams, Jones, and Vela-Lopez ("Defendants") filed a request for an updated discovery and scheduling order to reset all the discovery deadlines set in this case. (Doc. #55.) Defendants seek to reset the discovery deadlines because it is unclear whether Defendants Hicinbothem and Kush will be served and make appearances in this action.
This action proceeds on Plaintiff's claims against Defendants Adams, Jones, Vela-Lopez, Hicinbothem, and Kush. Defendants Adams, Jones, and Vela-Lopez have already been served and have made appearances in this action. However, summonses were returned unexecuted as to Defendants Hicinbothem and Kush. In an order issued concurrently with this order, the Court ordered Plaintiff to show cause why Hicinbothem and Kush should not be dismissed from this action pursuant to Federal Rule of Civil Procedure 4(m).
Counsel for Defendants Adams, Jones, and Vela-Lopez anticipate representing Defendants Hicinbothem and Kush in the event that they are served and make appearances in this action. Since it is uncertain whether Hicinbothem and Kush will be served, counsel for Defendants seek to amend the discovery and scheduling order to permit them to wait until the issue is resolved before deposing Plaintiff. Defendants seek to avoid conducting multiple depositions and incurring the cost of traveling to Corcoran, California, twice. They seek to avoid conducting a deposition on behalf of Defendants Adams, Jones, and Vela-Lopez, only to conduct another deposition after Defendants Hicinbothem and Kush make their appearances. Defendants state that "[n]o discovery has yet been undertaken due to a desire to have all Defendants represented by Counsel before traveling to take the deposition of Plaintiff/Inmate Cohea who is incarcerated at Corcoran State Prison in Corcoran, California." (Request for Updated Scheduling and Discovery Order After Service or Dismissal of All Named Defendants 2:11-13, ECF No. 55.).
The Court understands Defendants' desire to consolidate the discovery process to save time and money. Defendants may not, however, avoid conducting discovery within the deadlines set forth in the case simply because it is more convenient for them to wait and determine whether Hicinbothem and Kush make their appearances in this action. It is unclear why Defendants did not propound interrogatories, document production requests, or requests for admission relevant to their defenses regardless of whether Hicinbothem or Kush appears in this action. The Court also notes that Defendants were previously granted an extension of the discovery deadline.*fn1
While Defendants' arguments are unpersuasive, the Court recognizes that there was some ambiguity regarding the claims being raised in this lawsuit caused by Plaintiff's motions for reconsideration and his appeal to the Ninth Circuit.*fn2 The scope of this lawsuit was not clearly defined until the September 14, 2010, order dismissing certain claims from Plaintiff's complaint. Plaintiff's appeal was denied on June 21, 2010.
Accordingly, the Court will amend the discovery and scheduling order. All discovery, including filing motions to compel, must be completed by April 15, 2011. Any dispositive motions must be filed by May 31, 2011. To the extent that Defendants are required to schedule a deposition before it is clear whether Hicinbothem and Kush will be dismissed from this action, Defendants are advised that they must accept the possibility that they may have to travel to Corcoran, California, more than once, to conduct depositions. The Court will not grant a further postponement of the discovery deadlines simply for Defendants' convenience.
Based on the foregoing, it is HEREBY ORDERED that:
1. The deadline for conducting all discovery is extended through April 15, 2011; and
2. The deadline for filing dispositive motions is extended through May 31, 2011.
IT IS SO ORDERED.