UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
May 9, 2012
RICHARD A. OCHOTORENA,
K. CURTISS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO MODIFY SCHEDULING ORDER WITHOUT PREJUDICE (DOC. 130)
This matter is set for jury trial on September 11, 2012 before United States District Judge Lawrence J. O'Neill. On April, 12, 2012, Defendants filed a motion for modification of the Court's Second Scheduling Order. Defendants' counsel will be unavailable from Friday September 14, 2012 to Monday September 17, 2012, and from Wednesday July 25, 2012 to Sunday July 29, 2012, because of pre-paid non-refundable out-of-state vacations. Defendant requests the following modifications: 1) Plaintiff's pretrial statement and motion for incarcerated witnesses are due by July 5, 2012; (b) Defendants' pretrial statement and opposition to Plaintiff's motion for incarcerated witnesses are due by July 18, 2012; (c) the telephonic trial confirmation hearing will still occur on August 9, 2012, (d) trial will start on September 11, 2012; and (e) if necessary, trial be dark on September 14, 2012 through September 17, 2012.
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.
For the following reasons, Defendants' motion will be granted in part and denied in part. Defendants have demonstrated diligence in the filing of their motion, and sufficient good cause. Flexibility with regards to the filing deadlines for pretrial statements, motions for incarcerated witnesses, and oppositions is not at issue. The Court will so modify according to Defendants' proposal, with one exception. In the interest of justice, Plaintiff will be granted the same deadline for the filing of pretrial statements as Defendants.
However, the trial judge in this action has a severely impacted courtroom schedule, and lacks flexibility in changing trial dates. If trial is necessary on September 14, 2012, trial will proceed.
Accordingly, it is HEREBY ORDERED that:
1. Defendants' motion to modify the scheduling order, filed April 12, 2012, is granted in part and denied in part;
2. The deadline for all parties to file pretrial statements is July 18, 2012;
3. Plaintiff's deadline to file a motion for attendance of incarcerated witnesses is July 5, 2012;
4. Defendants' deadline to file an opposition is July 18, 2012;
5. All other deadlines and provisions from the Court's April 2, 2012 Second Scheduling Order remain.
IT IS SO ORDERED.
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