UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
July 21, 2011
JAMES E. BRYANT,
KNIGHT, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING DEFENDANTS' MOTION FOR MODIFICATION OF SCHEDULING ORDER (DOC. 43)
Unenumerated 12(b) Motion Deadline: August 31, 2011
Plaintiff James E. Bryant ("Plaintiff") is a prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants Knight and Davis. Pending before the Court is Defendants' motion for modification of the discovery and scheduling order, filed July 15, 2011. Doc. 43.
On May 17, 2011, the Court issued a discovery and scheduling order, setting an unenumerated 12(b) motion filing deadline of July 17, 2011. Defendants seek a modification up to and including August 31, 2011. Defendants' counsel contends that two of Plaintiff's three claims were possibly not administratively exhausted. Defendants' counsel contends that he will not be able to meet the deadline because of his heavy involvement in discovery in another action, and because he needs time to obtain and review additional administrative grievances, if any, before preparing the motion.
The decision to modify a scheduling order is within the broad discretion of the district court. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (quoting Miller v. Safeco Title Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985)). Pursuant to Federal Rule of Civil Procedure 16, a pretrial scheduling order "shall not be modified except upon a showing of good cause," and leave of court. Fed. R. Civ. P. 16(b)(4); Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087-88 (9th Cir. 2002). Although "the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification." Johnson, 975 F.2d at 609.
Good cause having been presented, it is HEREBY ORDERED that Defendants' motion for modification of the scheduling order, filed July 15, 2011, is GRANTED. The deadline for filing an unenumerated 12(b) motion is August 31, 2011.*fn1
IT IS SO ORDERED.