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Andrew Lopez, Plaintiff v. Florez

March 26, 2013

ANDREW LOPEZ, PLAINTIFF,
v.
FLOREZ, ET. AL, DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO FILE DISCOVERY REQUESTS (Doc. 125) ORDER DENYING PLAINTIFF'S MOTION THAT DEFENDANTS FAILED TO RESPOND TO DISCOVERY, MOTION FOR SANCTIONS AND/OR TO COMPELAND REQUEST FOR COUNSEL (Doc. 134) ORDER GRANTING DEFENDANT'S MOTION FOR EXTENSION OF TIME TO RESPOND TO DISCOVERY AND RESPOND TO PLAINTIFF'S MOTION TO COMPEL (Doc. 143).

Plaintiff Andrew Lopez ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Before the Court are Plaintiff's motion for an extension of time to file motions to compel discovery (Doc. 125) and Plaintiff's numerous motions to compel discovery (Docs. 134, 135, 137, and 139). Also before the Court is joint motion for extension of time to respond to discovery and respond to Plaintiff's motions to compel in regard to Documents 2 135, 137, and 139. (Doc. 143).

Having the read and considered the pleadings, and for the following reasons, the Court GRANTS Plaintiff's motion for extension of time (Doc. 125), GRANTS Defendants' motions for 5 extension of time (Doc. 143), DENIES as moot Plaintiff's notice that Defendants failed to respond to 6 discovery, motion for sanctions and/or to compel ("notice of failure")(Doc. 134), and DENIES 7

Plaintiff's request for appointment of counsel (Doc. 134). 8

I.PROCEDURAL BACKGROUND

On February 19, 2013, Plaintiff filed a motion for extension of time to file a motion to compel discovery for fourteen days beyond March 4, 2013, which was the date set forth in the discovery and scheduling order (Doc. 78). (Doc. 125). Without leave of the Court, on March 7, 2013, Plaintiff filed a notice of Defendants' failure to respond to discovery, motion for sanctions and/or motion to compel.*fn1 (Doc. 134). Again, without leave of the Court, Plaintiff filed another motion to compel discovery on March 13, 2013. (Doc. 135). Also on March 13, 2013, Plaintiff submitted a notice of Defendants' failure to respond to interrogatories. (Doc. 139). On March 18, 2013, Plaintiff filed a third motion to compel discovery. (Doc. 139).

On March 21, 2013, Defendants filed their opposition to Plaintiff's motion to compel and request for sanctions (Doc. 134). (Doc. 142). On March 25, 2013, Defendants' submitted a motion requesting an extension of time of sixty (60) days in which to respond to Plaintiff's motions to compel discovery as contained in Documents 135, 137, and 139. (Doc. 143).

II. Discussion.

A.Plaintiff has shown diligence in complying with the discovery and scheduling order. Under Fed. R. Civ. P. 16(d), a discovery and scheduling order controls the course of litigation unless the Court subsequently alters the original order. A court may modify the original order on a party's demonstration of "good cause" if the deadlines set forth in the scheduling order cannot be met "despite diligence of the party seeking the extension." Fed. R. Civ. P. 16 advisory committee's note, 2 1983 Amendment. To prove "diligence," the Court may require the moving party to prove: 3

"(1) that [he] was diligent in assisting the Court in creating a workable [scheduling and discovery order] order; (2) that [his] noncompliance with [the scheduling and discovery order] occurred or will occur [] because of [] matters which could not have been reasonably foreseen or anticipated at the time of the.scheduling conference; and (3) that [he] was diligent in seeking amendment of the Rule 16 order, once it became apparent that [he] could not comply with the order."

Franklin v. Felker, 2:11-CV-2055 KJN P, 2012 WL 3234234 (E.D. Cal. 2012). 8

Here, the record indicates that Plaintiff was diligent in seeking to comply with discovery.

Plaintiff states that several sets of discovery responses were due prior to the March 4, 2013, for discovery completion. (Doc. 125 at ¶ 3)(emphasis added). It is indicated that Plaintiff did not serve his discovery requests to Defendants in such a way that they would be due after the March 4 discovery deadline. Id. Plaintiff cites to the prison's delay in processing mail as the reason for his request for this extension and notes that the time of in which he receives his mail is beyond his control. (Doc. 125 at ¶ 4). Plaintiff indicates, for example, that on one occasion he did not receive discovery documents until seven days after they were mailed by the Defendants. Id. Given the nature of his incarceration, the Court finds that the timing in which Plaintiff receives his mail is beyond the control of Defendant and that the Plaintiff was diligent in seeking to comply with discovery.

In addition, Plaintiff was diligent in seeking to amend the scheduling and discovery order. Plaintiff filed his motion for extension of time on February 19, 2013. (Doc. 125). This was over ten days prior to the March 4, 2013 order. Thus, the Court GRANTS Plaintiff's motion for extension of time to file his motions to compel discovery for fourteen days beyond the March 4, 2013, discovery deadline. Therefore, the Court WILL CONSIDER Plaintiff's motions to compel discovery ...


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