United States District Court, E.D. California
November 7, 2014
ROBERT E. THOMPSON, Plaintiff,
J. HARTLEY, et al., Defendant(s)
Robert E Thompson, Plaintiff, Pro se, Corcoran, CA.
For P. Campbell, D Tercero, Defendants: Michelle M. Mayer, LEAD ATTORNEY, Office of the Attorney General, Sacramento, CA.
ORDER GRANTING DEFENDANT CAMPBELL'S MOTION FOR JOINDER IN SUMMARY JUDGMENT MOTION (ECF No. 37)
Twenty-One Day Deadline For Plaintiff To File Any Supplemental Opposition
ORDER GRANTING DEFENDANTS' MOTION TO EXTEND TIME TO REPLY TO PLAINTIFF'S OPPOSITION TO SUMMARY JUDGMENT MOTION (ECF No. 38)
Seven-Day Deadline For Defendants' To File Joint Reply
Michael J. Seng, UNITED STATES MAGISTRATE JUDGE.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This matter proceeds on the Second Amended Complaint on an excessive force claim against Defendants Tercero and Campbell. On August 7, 2014, Defendant Tercero filed a motion for summary judgment. Plaintiff filed opposition to the motion on September 19, 2014.
Before the Court are (1) Defendant Campbell's October 14, 2014 motion to join in Defendant Tercero's motion for summary judgment, and (2) Defendants' October 30, 2014 motion to extend the current October 31, 2014 deadline to respond to Plaintiff's opposition to the summary judgment motion.
I. JOINDER MOTION
The Court finds good cause to grant Defendant Campbell's joinder motion provided Plaintiff has an opportunity to supplement his previously filed opposition. The Court has discretion to allow amendment of a motion in the interests of justice where no prejudice to the adverse party is apparent. Fed.R.Civ.P. 7; Hupp v. Switzerland of Ohio Local School Dist., 912 F.Supp.2d 572, 604 (S.D. Ohio 2012) (court has discretion to allow supplemental briefing).
Plaintiff has not opposed the joinder motion. Defendant Campbell was not served with this lawsuit until August 20, 2014, after filing of the summary judgment motion and Plaintiff's opposition to it. Campbell's alleged liability arises from the same incident as Defendant Tercero. The exhaustion issue raised on Defendant Tercero's summary judgment motion equally concerns the claim against Defendant Campbell.
It does not appear that allowing Campbell to join in the summary judgment motion will cause prejudice to Plaintiff. Nevertheless Plaintiff will be allowed to supplement his September 19, 2014 opposition, as provided below, should he wish do to so.
II. EXTENSION OF TIME
The Court also finds good cause to exercise discretion to extend time. An extension of time normally will be granted in the absence of bad faith on the part of moving party or prejudice to the adverse party. Fed.R.Civ.P. 6(b); California Trout v. F.E.R.C., 572 F.3d 1003, 1027 n.1 (9th Cir. 2009); see also Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010). The Court previously extended time in order that defense counsel could request the documents needing review. (See ECF No. 35.) Defendants' counsel states she needs a further extension of time due to the press of other business and in order to review the requested documents, complete the reply brief and have it approved by her supervisor.
Accordingly, for the reasons stated, it is HEREBY ORDERED that:
1. The motion of Defendant Campbell to join in the summary judgment motion of Defendant Tercero in its entirety (ECF No. 37) is GRANTED provided that Plaintiff may, but need not, file supplemental opposition to the summary judgment motion by not later than 21 days following service of this Order; and
2. The motion of Defendants Tercero and Campbell to extend the current October 31, 2014 deadline to reply to Plaintiff's opposition to summary judgment motion (ECF No. 38) is GRANTED provided that any joint reply must be filed within seven days following filing of supplemental opposition, or if no supplemental opposition is filed then within seven days following the above deadline to file supplemental opposition.
IT IS SO ORDERED.