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Gary Lasher v. R. Miranda

October 17, 2012

GARY LASHER, PLAINTIFF,
v.
R. MIRANDA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's August 29, 2012 motion to compel and to reopen discovery, September 10, 2012 motion for transcripts, and September 10, 2012 motion in limine. Also pending is defendants' October 1, 2012 motion to modify the scheduling order.

Plaintiff's Motion to Compel and Motion to Re-Open Discovery

Legal Standard

Pursuant to Federal Rule of Civil Procedure 16(b)(4), "[a] schedule may be modified only for good cause and with the judge's consent." See also Zivkovic v. So. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) ("In general, the pretrial scheduling order can only be modified 'upon a showing of good cause.'") (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992)). In Johnson, the Ninth Circuit Court of Appeals described Rule 16's "good cause" inquiry:

A court's evaluation of good cause is not coextensive with an inquiry into the propriety of the amendment under ... Rule 15. Unlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)' s "good cause" standard primarily considers the diligence of the party seeking the amendment. The district court may modify the pretrial schedule if it cannot reasonably be met despite the diligence of the party seeking the extension. Moreover, carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief. 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. If that party was not diligent, the inquiry should end.

Johnson, 975 F.2d at 609 (citations and quotation marks omitted, modification in original).

Judges of this court have articulated and undertaken the following three-step inquiry in resolving the question of "diligence" in the context of determining good cause under Rule 16:

[T]o demonstrate diligence under Rule 16's "good cause" standard, the movant may be required to show the following: (1) that she was diligent in assisting the Court in creating a workable Rule 16 order; (2) that her noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding her diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference; and (3) that she was diligent in seeking amendment of the Rule 16 order, once it became apparent that she could not comply with the order.

Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. 1999) (citations omitted).

Analysis

Pursuant to the March 21, 2012, scheduling order, discovery closed on July 13, 2012. This order further provided that all motions to compel were to be filed on that date and that any discovery requests were to be served not later than sixty days prior to that date.

On August 17, 2012, the undersigned granted defendants' motion to modify the scheduling order to extend the time for conducting plaintiff's deposition. The undersigned also granted plaintiff's request to postpone his deposition. In particular, the undersigned ordered that defendants had until August 31, 2012 to conduct plaintiff's deposition. The grounds of these requests were that plaintiff was transferred from High Desert State Prison ("HDSP") to the California Training Facility ("CTF") on or around June 27, 2012, and did not have adequate access to the law library and his legal materials in order to prepare for the deposition.

In the pending motion to compel and to reopen discovery, plaintiff alleges that he sent defendants interrogatories on or around July 8, 2012. Plaintiff alleges that on July 29, 2012, defendants informed him that they would not respond to the discovery requests because they were untimely. In the pending motion, plaintiff requests that defendants be ordered to respond to these requests. Plaintiff alleges that because defendants received an extension of time to conduct his deposition, plaintiff should have also been granted an extension of time to conduct discovery. Plaintiff also alleges that due to limited law library ...


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