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Jesse Washington v. J.W. andrews

January 3, 2013

JESSE WASHINGTON,
PLAINTIFF,
v.
J.W. ANDREWS, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER GRANTING CROSS-MOTIONS TO EXTEND TIME FOR PRETRIAL FILINGS AND AMENDING SECOND SCHEDULING ORDER

(ECF Nos. 88, 116, 118)

Telephonic Trial Confirmation

Hearing: February 4, 2013

Jury Trial: March 26, 2013

I. PROCEDURAL HISTORY

Plaintiff Jesse Washington is a California state prisoner proceeding pro se and in forma pauperis in this civil rights action filed June 21, 2007 pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) The parties have declined Magistrate Judge jurisdiction. (Decline Juris., ECF Nos. 86-87, 90.)

This case is proceeding on Plaintiff's claim that Defendants destroyed his personal property, were indifferent to his medical needs, denied him access to court and retaliated against him. The Court has filed scheduling orders under which Plaintiff's pretrial statement and incarcerated witness motion(s) are due December 24, 2012; Defendants' pretrial statement and opposition to incarcerated witness motion(s) are due January 7, 2013; telephonic trial confirmation hearing is set for January 14, 2013; and jury trial is set for February 26, 2013. (Second Sch. Order, ECF No. 88, 5:6-24.)

On December 26, 2012, Plaintiff filed an ex parte motion to extend time to file his pretrial statement and incarcerated witness motion(s) from the current December 24, 2012 to January 6, 2013. (Pl. Mot. Ext. Time, ECF No. 116.)

On January 2, 2013, Defendants filed a motion to extend time to file their pretrial statement and opposition to Planitiff's incarcerated witness motion(s) from the current January 7, 2013 to January 28, 2013. (Defs. Mot. Ext. Time, ECF No. 118.) These motions are now before the Court.

II. LEGAL STANDARD

A scheduling order "may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). "The good cause standard 'primarily considers the diligence of the party seeking the amendment' . . . 'carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief.' " C.F. v. Capistrano Unified School Dist., 656 F.Supp.2d 1190, 1194 (C.D. Cal. 2009). In determining good cause under Rule 16, a court considers four factors: (1) the explanation for the failure to timely move for relief; (2) the importance of the relief sought; (3) potential prejudice in allowing the relief; and (4) the availability of a continuance to cure such prejudice.'" (Id. at 1196.)

Good cause to modify a scheduling order requires the party demonstrate that, despite diligence, the proposed relief could not have been reasonably sought in a timely manner. Venetec Inter., Inc., v. Nexus Medical, LLC, 541 F.Supp.2d 612, 618 (D. Del. 2008).

"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 v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992), citing Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 ...


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