(PC) Gomes v. Mathis

XAVIER BECERRA, State Bar No. 118517

Attorney General of California

PETER A. MESHOT, State Bar No. 117061

Supervising Deputy Attorney General

DIANA ESQUIVEL, State Bar No. 202954

Deputy Attorney General

1300 I Street, Suite 125

P.O. Box 944255

Sacramento, CA 94244-2550

Telephone: (916) 210-7320

Facsimile: (916) 322-8288

E-mail: [email protected]

Attorneys for Defendant Lotersztain

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SACRAMENTO DIVISION

LAWRENCE E. GOMES, No. 2:19-cv-01499 KJM-DMC

Plaintiff, STIPULATION AND PROPOSED

ORDER TO EXTEND SCHEDULING v. DEADLINES TO EXTEND DEADLINES

BY NINETY DAYS

DAVID M. MATHIS, et al.,

Action Filed: September 22, 2017 Defendants.

Plaintiff, a former state prisoner proceeding pro se, brings this civil rights action under 42 U.S.C. § 1983. Under Federal Rule of Civil Procedure 16(b)(4) and Local Rule 143, Plaintiff pro se, Lawrence Gomes, and Defendant Lotersztain stipulate to and request a ninety-day extension of the scheduling deadlines set out in the October 20, 2020 Order. (ECF No. 61.) This third request for an extension is needed because the parties require more time to complete discovery in light of the continuing COVID-19 pandemic that has hindered the parties’ ability to complete fact discovery, including taking Plaintiff’s deposition.

When an act must be done within a specified time, the court may, for good cause, extend the time with or without motion or notice if the court acts, or if a request is made, before the original time expires. Fed. R. Civ. P. 6(b)(1)(A). A scheduling order may be modified only upon a showing of good cause and by leave of Court. Id. 16(b)(4); see, e.g., Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (describing the factors a court should consider in ruling on such a motion). In considering whether a party moving for a schedule modification has good cause, the Court primarily focuses on the diligence of the party seeking the modification. 5 Johnson, 975 F.2d at 609 (citing Fed. R. Civ. P. 16 advisory committee’s notes of 1983 amendment). “The district court may modify the pretrial schedule ‘if it cannot reasonably be met despite the diligence of the party seeking the amendment.’” Id. (quoting Fed. R. Civ. P. 16 advisory committee notes of 1983 amendment).

On July 17, 2020, the Court granted the parties’ stipulated request to extend the scheduling deadlines set out in the initial Scheduling Order by six months due to the continuing national pandemic. (See ECF Nos. 46, 59.) It should be noted that, at the time, the full scope and expected duration of the pandemic and concomitant public health measures and restrictions were unknown by public health and government officials, let alone the parties and defense counsel. As such, on October 29, 2020, the parties requested, and the Court granted, a ninety-day extension of the scheduling deadlines due the ongoing pandemic, Plaintiff’s then-medical condition and concerns with being exposed to COVID-19, and the need to obtain Plaintiff’s more recent medical records. (See ECF Nos. 60-61.) Since that time, the parties have continued to conduct discovery that included Defendant propounding additional written discovery to ascertain the identities of Plaintiff’s medical providers since his release from prison. Defendant has not received responses to her discovery to subpoena the current medical records, nor has she been able to take Plaintiff’s deposition due to his high-risk status if exposed to COVID-19. Distribution of the COVID-19 vaccine did not commence until recently. Although Plaintiff has several medical conditions that make him eligible to receive the COVID-19 vaccine earlier than other groups, he is within an age group that is still not receiving the vaccine in Arizona, where Plaintiff currently resides. At the present time, it not yet known when the pandemic-related risks and restrictions will resolve such that Plaintiff’s deposition can be taken and completed. In addition to the ongoing pandemic, Plaintiff’s is currently experiencing and being treated for diabetic-related symptoms that is further impairing Plaintiff’s ability to complete the discovery needed here.

Based on the foregoing, the parties agree to and request that the Court extend the scheduling deadlines for an additional ninety days as follows: Complete non-expert discovery by May 3, 2021; disclose expert witnesses by June 1, 2021; complete expert discovery by August 2, 2021; and file dispositive motions by September 29, 2021.

IT IS SO STIPULATED.

Dated: February 2, 2021 Respectfully submitted,

XAVIER BECERRA

Attorney General of California PETER A. MESHOT

Supervising Deputy Attorney General /s/ Diana Esquivel

DIANA ESQUIVEL

Deputy Attorney General

Attorneys for Defendant Lotersztain

Dated: February 2, 2021 /s/ Larry Gomes (as authorized 2/2/21) LAWRENCE G. GOMES

Plaintiff pro se

LA2019501633

34791383.docx

ORDER

Good cause appearing, the parties’ stipulated request to extend the scheduling deadlines by ninety days is GRANTED. The scheduling deadlines are extended as follows: Complete non-expert discovery by May 3, 2021

Disclose expert witnesses by June 1, 2021

Complete expert discovery by August 2, 2021

File dispositive motions by September 29, 2021

In all other respects, the December 16, 2019 Scheduling Order (ECF No. 53) remains in full force and effect.

IT IS SO ORDERED.

Dated: February 9, 2021 Sx<o_-

DENNIS M. COTA

UNITED STATES MAGISTRATE JUDGE