UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
September 14, 2012
BASS, ET AL.,
The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER REQUIRING DEFENDANT TO PROVIDE ADDITIONAL BRIEFING ON DEFENDANT'S APPLICATION TO POSTPONE TRIAL FOURTEEN DAY DEADLINE
Plaintiff Lamont Shepard ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Following resolution of the parties' cross-motions for summary judgment, this action is now proceeding on Plaintiff's complaint, filed April 30, 2010, against Defendant Bass for excessive force in violation of the Eighth Amendment. (ECF No. 62.) This action is currently set for trial on December 11, 2012, before the undersigned. (ECF No. 63.) On August 22, 2012, Defendant filed an application to postpone the jury trial. (ECF No. 73.) Plaintiff filed an opposition on September 4, 2012. (ECF No. 74.)
Defendant requests that the trial be postponed until after the first of the year because lead trial counsel has the re-trial of an employment law action in Los Angeles Superior Court that is anticipated to run from November 13, 2012, to December 12, 2012. Plaintiff argues that the trial is not in conflict because Defendant has multiple attorneys that can try this action until lead counsel is available to take over the trial, or can postpone the matter currently set in Los Angeles Superior Court.
This Court allows counsel and parties to participate in the selection of trial dates, and considers the trial dates to be serious and firm.
Defendant is ordered to file additional briefing in the form of declarations, addressing whether the date setting for the retrial had counsel's input, whether counsel brought the conflict to the state court's attention (and if so, in what form), and whether other attorneys in the firm are available to act as counsel in this action. The briefing shall include declarations from each attorney in the firm addressing their availability. Additionally, defense counsel is to address the reasons that the action in Los Angeles Superior Court is anticipated to actually go to trial on or near the date scheduled.
Accordingly, within fourteen days from the date of service of this order, Defendant is to file additional briefing as described in this order. Failure to do so will result in an immediate denial of the motion to continue.
IT IS SO ORDERED.
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