The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO CONTINUE TRIAL AND SETTING TELEPHONIC CONFERENCE (ECF No. 148)
Telephonic Conference: September 6, 2012, at 8:00 a.m. in Courtroom 4 (LJO)
Plaintiff Richard A. Ochotorena ("Plaintiff") is a California state prisoner proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. This case is proceeding on Plaintiff's complaint, filed November 30, 2005, against Defendants Duncan, Fambrough, Curtiss, Kalkis, Lane, and Rodriguez for excessive force in violation of the Eighth Amendment. The case was set for jury trial to commence on September 11, 2012 before the undersigned.
On August 30, 2012, Defendants filed a motion to continue the trial. ECF No. 148. Counsel for Defendants declared that: 1) Defendant Curtiss's father passed away and that the funeral is to be held on September 8, 2012; 2) he did not learn of this information until August 30, 2012; 3) Defendant Curtiss will be unable to meet with counsel during the week before trial to prepare; 4) Defendant Curtiss is too distraught and emotionally compromised to attend trial. Defs.' Request 1:25-2:4, ECF No. 148.
The Court issued a pretrial order on August 10, 2012, setting the trial date. Modification of the final pretrial order can only be done to prevent manifest injustice. Fed. R. Civ. P. 16(e).
The Court finds that manifest injustice would result if Defendant Curtiss could not attend trial, or in the alternative, was forced to trial under the current circumstances. Defendant Curtiss planned to testify in order to refute Plaintiff's claims in this action. Accordingly, the motion will be granted. The Court will set this matter for a pretrial telephonic conference for the purposes of setting a new trial date.
Based on the foregoing, it is HEREBY ORDERED that
1. Defendants' motion to continue the trial date, filed August 30, 2012, is granted;
2. The trial date of September 11, 2012, is vacated;
3. This matter is set for telephonic pretrial conference before the undersigned on September 6, 2012 at 8:00 a.m. in Courtroom 4; and
4. Counsel for Defendants is required to arrange for the participation of Plaintiff in the telephonic pretrial conference and to initiate the telephonic hearing at (559) 499-5680.
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