United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION AND REQUEST TO EXTEND THE DEADLINE TO FILE A
DISPOSITIVE MOTION [ECF NO. 86]
Curtis Boyd is appearing pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983.
before the Court is Plaintiff's motion for
reconsideration of the Court's January 13, 2017, order
denying his motion to compel. Plaintiff also requests an
extension of the dispositive motion deadline. Defendants
filed an opposition to Plaintiff's motion on March 6,
Motion for Reconsideration
motions are committed to the discretion of the trial court.
Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983)
(en banc); Combs v. Nick Garin Trucking, 825 F.2d
437, 441 (D.C. Cir. 1987). A party seeking reconsideration
must set forth facts or law of a strongly convincing nature
to induce the court to reverse a prior decision. See,
e.g., Kern-Tulare Water Dist. v. City of
Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986),
aff'd in part and rev'd in part on other grounds, 828
F.2d 514 (9th Cir. 1987).
motion, it appears that Plaintiff seeks an extension of time
to submit a reply to Defendants' opposition to
Plaintiff's motion to compel, filed October 14, 2016 and
denied on January 13, 2017. The Court denied Plaintiff's
motion to compel on January 13, 2017, and granted
Defendants' request for reasonable expenses imposed for
opposing Plaintiff's motion. On January 20, 2017, the
Court denied as moot Plaintiff's previous request for an
extension of time to file a reply to Defendants'
opposition to his motion to compel. In the January 13, 2017,
order, the Court denied Plaintiff's second motion to
compel stating the following:
As previously stated, Plaintiff seeks to compel the
production of additional “committee meetings
minutes.” (Mot. at 1, ECF No. 75.) Plaintiff contends
that he submitted a notice of production to respond, dated
March 31, 2016, alerting Defendants to the existence of
copies of SATF's committee meetings minutes being
archived at CDCR headquarters, per Departmental Operations
Manual (DOM) § 12050.9. Plaintiff also argues that
Defendant Ojeda “quoted from the previously claimed
non-existence not possessed by any defendant 2012 Ramadan
committee meeting minutes.”
There is no basis to support Plaintiff's motion to compel
a further response from Defendants. As explained above in
detail, Defendants have on numerous occasions advised
Plaintiff that they have produced any and all documents that
they can locate to date regarding Ramadan planning at SATF.
Moreover, on August 24, 2016, defense counsel called
Plaintiff to reiterate that SATF had no reason to believe
that any other “minutes” existed. (Decl. A.
Whisnand, ¶ 25.) Counsel submits that Plaintiff
indicated that he understood that the June 18, 2012,
document, “Ramadan Meeting” was the only
“minutes” that Defendants or SATF could locate,
and Plaintiff submits no evidence to the contrary. Plaintiff
provides no support for his claim that the alleged
“minutes” were “archived at CDCR
headquarters, ” and Plaintiff's reference to the
DOM section does not mention archiving minutes for meetings
concerning religious events. (Decl. A. Whisnand, ¶¶
5, 8-9, Ex. B at Whisnand.009.) Because Defendants have
produced all of the “minutes” that they or SATF
can locate concerning Ramadan and have indicated that a
supplemental response will be provided if and when additional
documentation is located, Plaintiff's motion to compel
must be denied. As stated in the Court's March 3, 2016,
denying Plaintiff's first motion to compel,
“[a]bsent evidence to the contrary, not present here,
Plaintiff is required to accept defense counsel's
representation that such documentation either does not exist
or cannot be located, and Defendant cannot be compelled to
provide copies of documents that do not exist.” (Order
at 6, ECF No. 65.) Accordingly, Plaintiff's second motion
to compel is denied.
(Order at 10:1-26, ECF No. 81.) Plaintiff now seeks to submit
a reply to simply re-hash the same arguments presented,
considered and rejected by the Court on numerous occasions,
namely, Plaintiff's claim that defense counsel has, in
“an act of factual fraud or deceit upon the court,
allegedly withheld “COMMITTEE MEETING MINUTES”
that were supposedly routed to CDCR headquarters. Plaintiff
fails to present facts or law that warrant reconsideration of
the prior denial of his second motion to compel in this case.
Plaintiff simply repeats the same arguments that do not
support a valid basis for reconsideration of the Court's
January 13, 2017, order. Accordingly, Plaintiff's motion
for reconsideration shall be denied.
Motion to Extend the Dispositive Motion Deadline
requests that the Court vacate and reset the dispositive
motion deadline in order for him to file his own motion for
summary judgment. Defendants' oppose Plaintiff's
request on the ground that Plaintiff has failed to
demonstrate good cause.
Rule 16 of the Federal Rules of Civil Procedure, 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), 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. The court may also consider the
prejudice to the party opposing the modification.
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). A party may obtain relief from the
court's deadline date for discovery by demonstrating good
cause for allowing further discovery. Fed.R.Civ.P. 16(b)(4).
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
comply with the scheduling order.” Kuschner
Nationwide Credit, Inc., 256 F.R.D. 684, 687 (E.D. Cal.
order to demonstrate diligence, Plaintiff must show whether
he collaborated with the court in setting a schedule; whether
matters that were not, and could not have been, foreseeable
at the time of the scheduling conference caused the need for
amendment; and whether the movant was diligent in seeking
amendment once the need to amend became apparent.
Johnson, 975 F.2d at 608. “[C]arelessness not
compatible with a finding of diligence and offers no ...