(PC) Garcia v. Garcia

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA MARCO A. GARCIA, Case No. 1:17-cv-01313-BAM (PC) 12 Plaintiff, ORDER GRANTING DEFENDANTS’ REQUEST FOR ORDER FOR EXTENSION 13 v. OF TIME TO TAKE THE DEPOSITION OF PLAINTIFF GARCIA, et al., (ECF No. 42) 15 Defendants. ORDER EXTENDING DISPOSITIVE MOTION DEADLINE Discovery Deadline: January 18, 2021 17 Dispositive Motion Deadline: March 18, 2021 19 Plaintiff Marco A. Garcia (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s complaint against Defendants Garcia and Bursiaga for excessive force in violation of the Eighth Amendment. All parties have consented to Magistrate Judge jurisdiction and the case has been reassigned to the undersigned for all further purposes and proceedings, including trial and entry of judgment. (ECF No. 28.)

25 Pursuant to the Court’s December 12, 2018 discovery and scheduling order and June 19, 2020 order resetting discovery and dispositive motion deadlines, the deadline for completion of all discovery is October 18, 2020 and the deadline for filing all dispositive motions (other than a motion for summary judgment for failure to exhaust) is December 18, 2020. (ECF Nos. 26, 38.)

1 Plaintiff’s responses to Defendants’ written discovery requests were also due on or before September 28, 2020. (ECF No. 40.)

3 Currently before the Court is Defendants’ request for an extension of time to take Plaintiff’s deposition, filed October 14, 2020. (ECF No. 42.) Although Plaintiff has not had an opportunity to respond to the motion, the Court finds a response unnecessary and the motion is deemed submitted. Local Rule 230(l).

7 Pursuant to Rule 16(b), a scheduling order “may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily considers the diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). The court may modify the scheduling order “if it cannot reasonably be met despite the diligence of the party seeking the extension.” Id. If the party was not diligent, the inquiry should end. Id. 13 In their motion, Defendants state that they received Plaintiff’s responses to their written discovery requests on September 18, 2020. (ECF No. 42.) Having reviewed the responses, Defendants would like to take Plaintiff’s deposition, but are unable to do so before the October 18, 2020 discovery deadline. In addition, due to Plaintiff’s incarceration, Defendants will need to obtain permission from the institution to conduct Plaintiff’s virtual deposition (as in-person depositions are not allowed due to COVID-19) and to make arrangements for the necessary technology to be provided to Plaintiff. Defendants state that good cause therefore exists to continue the discovery cutoff to at least January 18, 2021. (Id.) 21 Having considered the request, the Court finds good cause to continue the discovery deadline in this action. Defendants have been diligent in their efforts to obtain responses to their written discovery requests and their prior attempt to take Plaintiff’s deposition, and circumstances outside of Defendants’ control prevent their taking of Plaintiff’s deposition prior to the current discovery deadline. The Court finds that Plaintiff will not be prejudiced by the brief extension here. Finally, as the extended discovery deadline exceeds the current deadline for the filing of dispositive motions, the Court also finds it appropriate to extend the dispositive motion deadline.

28 /// 1 Accordingly, IT IS HEREBY ORDERED as follows: 2 1. Defendants’ request for order for extension of time to take the deposition of Plaintiff, 3 (ECF No. 42), is GRANTED; 4 2. The deadline for completion of all discovery is extended to January 18, 2021; and 5 3. The deadline for filing all dispositive motions (other than a motion for summary judgment 6 for failure to exhaust) is extended to March 18, 2021.

IT IS SO ORDERED.

9 Dated: October 15, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE