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Michael Tenore v. Nathanael Goodgame

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


November 28, 2012

MICHAEL TENORE, PLAINTIFF,
v.
NATHANAEL GOODGAME, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

This action pursuant to 42 U.S.C. § 1983 proceeds on certain claims in the First Amended Complaint, filed on August 29, 2012. (Dkt. No. 22 (FAC).) On November 27, 2012, the district court ordered that the operative claims in the FAC are against defendants Goodgame, Tseng, Heatley, Heffner, and Smith, and concern medical treatment for plaintiff's scabies. All other claims are dismissed. (Dkt. No. 31, adopting findings and recommendations at Dkt. No. 27.)

Before the court is defendants' November 9, 2012 motion seeking an amended discovery and scheduling order, among other relief. (Dkt. No. 30.) In light of the FAC, the original scheduling order filed on August 2, 2012 (Dkt. No. 17) will be vacated. Per defendants' request, and good cause appearing, defendants need not respond to plaintiff's discovery requests served October 3, 2012.

Defendants seek an amended discovery and scheduling order setting new dates for the service of discovery requests, discovery cutoff, and dispositive motions. However, as defendants have not yet filed an answer to the FAC (or at least indicated that they intend to stand on their answer to the original complaint), such an order would be premature. Defendants will have the opportunity to answer the FAC, after which an amended discovery and scheduling order will issue.

On September 13, 2012, a summons was returned unexecuted for defendant L. Heffner, noting "per facility, currently not working for Dept. of Corrections and Rehabilitation." (Dkt. No. 23.) As this defendant's location is discoverable by plaintiff, the court will expedite matters by directing defendants' counsel to conduct a good-faith inquiry into this defendant's whereabouts and so inform the court. See Fed. R. Civ. P. 26(b)(1) (identity and location of persons having knowledge of any discoverable matters are discoverable).

Accordingly, IT IS HEREBY ORDERED THAT: 1. Defendants' motion to amend the discovery and scheduling order (Dkt. No. 30) is granted as follows:

a. The discovery and scheduling order filed August 2, 2012 (Dkt. No. 17) is hereby VACATED;

b. Defendants shall reply to the FAC within 30 days of service of this order. If defendants' reply is an answer, an amended discovery and scheduling order will issue thereafter.

c. Defendants need not respond to plaintiff's discovery requests served on October 3, 2012. Plaintiff may propound new discovery requests pursuant to an amended discovery and scheduling order if and when such issues.

2. Defendants' counsel shall query the CDCR to ascertain the whereabouts of defendant L. Heffner. If counsel is informed of the business address of defendant Heffner, counsel shall provide the address to plaintiff. In the event that counsel, after conducting a good faith inquiry, cannot ascertain the business address of defendant Heffner, counsel shall so inform the court. Defendants' counsel shall file and serve the appropriate response within thirty days of the file date of this order.

20121128

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