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Coston v. Yu

United States District Court, E.D. California

March 23, 2017

DANNY M. COSTON, Plaintiff,
v.
J.K. YU, et al., Defendants.

          ORDER DENYING DEFENDANT'S SECOND REQUEST TO MODIFY THE DISCOVERY AND SCHEDULING ORDER (ECF NO. 41)

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 1 & 8.) This matter proceeds on Plaintiff's Second Amended Complaint (“SAC”) Eighth Amendment medical indifference claim against Defendant Dr. J.K. Yu.

         Before the Court is Defendant's second motion to modify the April 19, 2016, Discovery and Scheduling Order (“DSO”). Plaintiff opposes this motion.

         I. Procedural Background

         Plaintiff initiated this action on January 27, 2014, and, as noted, is proceeding on the SAC, which was filed on May 14, 2015. Dr. Yu filed an answer on April 13, 2016, and a DSO then issued April 19, 2016. Pursuant to the DSO, which was modified once on February 28, 2017, the deadline to conduct discovery was December 19, 2016, and the deadline to file dispositive motions is April 11, 2017. (ECF Nos. 23, 37.)

         On October 12, 2016, Plaintiff filed a Third Amended Complaint, which Defendant moved to strike on October 31, 2016, on several grounds. (ECF Nos. 27-28.) On November 16, 2016, the Third Amended Complaint was stricken because Plaintiff did not seek leave of Court or obtain Defendant's consent before filing the pleading. See Fed.R.Civ.P. 15(a); E.D. Cal. Local Rules 137(c) and 220; Sapiro v. Encompass Inc., 221 F.R.D. 513, 517 (N.D. Cal. 2004).

         On November 17, 2016, Plaintiff re-filed the Third Amended Complaint with an accompanying motion for leave to amend. (ECF No. 31.) Defendant opposed the motion on December 12, 2016, and also moved to modify the DSO. (ECF Nos. 33, 34.)

         By Order dated January 15, 2017, Plaintiff's motion to amend and Defendant's motion to modify the DSO were both denied. (ECF No. 35.)

         On February 27, 2017, Plaintiff filed a motion for summary judgment. (ECF No. 38.) In response, Defendant now moves again for an order re-opening discovery and continuing the dispositive motion deadline. (ECF No. 41.) Plaintiff opposes this motion.

         II. Discussion

         Defendant's December 12, 2016, motion to modify the DSO was based on Dr. Yu's claim that he needed additional time to conduct discovery pending resolution of Plaintiff's motion to amend. Defendant claimed that motion to amend rendered “the scope of discovery … unknown.” Def.'s First Mot. Modify DSO at 3 (ECF No. 34). Defense counsel was concerned that Plaintiff's new pleading might bring in new defendants who counsel would need to represent. But there was no claim that Plaintiff's motion to amend rendered the scope of discovery against Dr. Yu, the moving party, unknown. Indeed, as noted in the Order denying both Plaintiff's motion to amend and Defendant's motion to modify, Plaintiff's claim against Dr. Yu remained unchanged from the operative pleading to the proposed Third Amended Complaint. In each, Plaintiff accused Defendant of exhibiting deliberate indifference in the performance of Dr. Yu's duties in May and June 2012. Since Dr. Yu had not shown good cause for his failure to conduct any discovery during the preceding eight months on the single, unchanged claim directed against him, Defendant's motion was denied.

         In Defendant's renewed request to modify the DSO, he argues that he requires the discovery of facts to oppose Plaintiff's pending summary judgment motion. Specifically, Dr. Yu claims that he needs to obtain Plaintiff's medical records and deposition testimony to dispute material facts set forth in Plaintiff's moving papers. Defendant sought this information for the first time on December 9, 2016, when he served on Plaintiff a notice of deposition and request for production of documents. Plaintiff's deposition was scheduled for December 19, 2016, the last day of the discovery period. Defendant then canceled Plaintiff's deposition on December 16, 2016 (one week after the service of the deposition notice and three days before the discovery deadline). He again claims this was necessary given the uncertainty surrounding the parties and claims in this action.

         Defendant's motion is brought pursuant to Federal Rules of Civil Procedure 16(b) and 56(d). Under Rule 16, a discovery and scheduling order controls the course of litigation unless the Court subsequently alters the original order. Fed R. Civ. P. 16(d). Modification of a scheduling order requires a showing of good cause, Fed.R.Civ.P. 16(b)(4), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the modification of a scheduling order must generally show that even with the exercise of due diligence, they cannot meet the requirement of that order. Id. If the party seeking to amend the scheduling order fails to show due diligence the inquiry should end and the court should not grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002).

         “Good cause may be found to exist where the moving party shows that it diligently assisted the court with creating a workable scheduling order, that it is unable to comply with the scheduling order's deadlines due to matters that could not have reasonably bee foreseen at the time of the issuance of the scheduling order, and that it was diligent in seeking an amendment once it became apparent that the party could not ...


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