United States District Court, E.D. California
DANNY M. COSTON, Plaintiff,
J.K. YU, et al., Defendants.
ORDER DENYING DEFENDANT'S SECOND REQUEST TO
MODIFY THE DISCOVERY AND SCHEDULING ORDER (ECF NO.
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.
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.
the Court is Defendant's second motion to modify the
April 19, 2016, Discovery and Scheduling Order
(“DSO”). Plaintiff opposes this motion.
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.)
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).
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.)
Order dated January 15, 2017, Plaintiff's motion to amend
and Defendant's motion to modify the DSO were both
denied. (ECF No. 35.)
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
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
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.
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).
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