(PC) Dosio v. Odeluga

Opinion

ELMER DOSIO, 1:19-cv-00675-ADA-GSA-PC

Plaintiff, ORDER GRANTING STIPULATED MOTION TO MODIFY SCHEDULING vs. ORDER (ECF No. 56.) N. ODELUGA, et al., ORDER EXTENDING DISPOSITIVE Defendants. MOTIONS FILING DEADLINE FOR ALL PARTIES New Dispositive Motions Deadline: 07/15/23

Elmer Dosio (“Plaintiff”) is a state prisoner proceeding with counsel and in forma pauperis with this civil rights action under 42 U.S.C. § 1983. This case proceeds with Plaintiff’s Second Amended Complaint against defendant Licensed Vocational Nurse (“LVN”) Elma Fernandez1 (“Defendant”) for failure to provide adequate medical care in violation of the Eighth Amendment. (ECF No. 18.)2

1 Sued as E. Frandez. 2 On April 29, 2021, the court issued an order dismissing all other claims and defendants from this case based on Plaintiff’s failure to state a claim. (ECF No. 20.) On September 14, 2021, the Court issued a Discovery and Scheduling Order, establishing pretrial deadlines for the parties, including a discovery deadline of February 14, 2022 and a deadline for filing dispositive motions of April 14, 2022. (ECF No. 32.) On December 14, 2021, Defendant filed a motion for summary judgment based on Plaintiff’s failure to exhaust administrative remedies. (ECF No. 35.) On December 15, 2021, the parties requested that the deadlines be vacated and reset pending resolution of that motion. (ECF No. 36.) On January 7, 2022, the Court granted the request to vacate the deadlines. (ECF No. 41.) On September 22, 2022, the Court denied Defendant’s motion for summary judgment, (ECF No. 50), and re-opened discovery on September 23, 2022, (ECF No. 51). The close of discovery was reset to January 30, 2023 and the dispositive motion deadline was set for March 30, 2023. (Id.) On January 20, 2023, the parties filed a joint motion to modify the scheduling order. (ECF No. 52.) The Court granted the parties’ joint motion and extended the discovery deadline to March 16, 2023, and the dispositive motion deadline to May 16, 2023. (ECF No. 53.) On May 12, 2023, the parties filed a stipulated motion to extend the deadline to file dispositive motions to July 15, 2023. (ECF No. 56.) 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 the 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). The parties request to modify the Discovery and Scheduling Order to extend the dispositive motion deadline set forth in the Court’s order issued on January 23, 2023. (ECF No. 56.) The Court finds good cause to extend the dispositive motions filing deadline from May 16, 2023 to July 15, 2023. Therefore, the motion to modify the scheduling order, filed by the parties on May 12, 2023, shall be granted. Based on the foregoing and good cause appearing, IT IS HEREBY ORDERED that: 1. The parties’ joint motion to modify the Court’s scheduling order, filed on May 12, 2023, is GRANTED; 2. The deadline for filing pretrial dispositive motions is extended from May 16, 2023 to July 15, 2023 for all parties to this action; and 3. All other provisions of the court’s September 14, 2021 Discovery and Scheduling Order remain the same. IT IS SO ORDERED.

Dated: May 15, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE