The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL AS MOOT (ECF Nos. 74, 93)
ORDER GRANTING DEFENDANTS' MOTION TO FILE AN AMENDED ANSWER (ECF Nos. 89, 92)
ORDER DENYING DEFENDANTS' MOTION TO AMEND THE SCHEDULING ORDER (ECF Nos. 90, 92)
Plaintiff Maximilian Monclova-Chavez ("Plaintiff") is a federal prisoner in this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971), which provides a remedy for violation of civil rights by federal actors. This action is proceeding on the complaint, filed January 15, 2008, against Defendants Miller, White, and Tincher for violations of the Eighth Amendment.*fn1 (ECF No. 1.) On April 24, 2009, Defendants Miller and White, appearing pro per, filed an answer to the complaint. (ECF Nos. 19, 20.) A discovery and scheduling order issued on April 30, 2009. (ECF No. 21.) On March 31, 2010, a pro hac vice application was filed on behalf of Plaintiff, and an order granting the application was issued on April 6, 2010. (ECF Nos. 46, 48.) On September 27, 2010, Defendants Miller and White filed a motion for an extension of discovery because they had requested reconsideration of the denial of representation and were waiting notification of legal representation by the Federal Government Regional Counsel. (ECF Nos. 66, 68.) The motions were denied on October 1, 2010. (ECF No. 70.)
Plaintiff filed a motion to compel on December 16, 2010. (ECF No. 74.) On March 21, 2011, Defendants Miller and White filed a substitution of attorney, which was granted on March 23, 2011. (ECF Nos. 80, 81, 83, 84.) Defendants filed a motion for leave to amend their answer on May 4, 2011, and a motion to reopen discovery on May 11, 2011. (ECF Nos. 89, 90.) Plaintiff filed oppositions to Defendants' motions on May 24, 2011. (ECF Nos. 91, 92.) Defendants filed a statement of non-opposition to Plaintiff's motion to compel on May 26, 2011. (ECF No. 93.)
Plaintiff filed a motion to compel Defendants Miller and White to respond to discovery requests. On May 26, 2011, Defendants filed a statement of non-opposition to Plaintiff's motion stating that they will submit supplemental responses to Plaintiff's discovery requests.
Defendants Miller and White are in the process of preparing supplemental responses to Plaintiff's discovery requests. Were the Court to reach Plaintiff's motion on the merits and find in his favor, the Court would order Defendants Miller and White to serve supplemental responses. In light of the fact that Defendants Miller and White are currently undertaking that very process, Plaintiff's motion to compel is moot and there is no justification for an expenditure of resources to reach the merits.*fn2
If they have not already done so, Defendants Miller and White shall serve their supplemental responses on Plaintiff within forty-five days. If Plaintiff is dissatisfied with the supplemental responses, he is not precluded from filing a motion to compel once he receives and reviews the responses.
III. Motion to Amend Scheduling Order
Defendants Miller and White bring a motion to reopen discovery arguing that they did not obtain counsel prior to the discovery cut-off date and good cause exists to grant their motion. Since Defendants were not represented by counsel they did not engage in much discovery. This was not due to lack of diligence, but from their inexperience in defending a federal lawsuit. Defendants had requested legal representation through their employer, but were denied and recently found the financial resources to hire defense counsel.
Plaintiff objects to the motion to amend the scheduling order stating it is procedurally unfair to Plaintiff as it does not state the amount of time requested and the parties may be able to work out an agreement to a limited reopening of discovery if they conferred. Although defense counsel indicated that he would review the outstanding motion to compel with his clients and discuss the matter with Plaintiff's counsel he has failed to do so.*fn3 Additionally, Defendants have failed to show due diligence. This is a simple case and Defendants can obtain Plaintiff's deposition taken by Defendant Tincher's counsel and Plaintiff will supply a copy of his medical records. Finally, the reopening of discovery will prejudice Plaintiff as it is likely to result in additional motions.
Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). If the party seeking to amend the scheduling order fails to show due diligence the inquiry should end and the court should not grant the motion ...