1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 ----oo0oo---- 10 11 WENDY GREENE, No. 2:23-cv-00082 WBS DMC 12 Plaintiff, 13 v. MEMORANDUM AND ORDER RE: PLAINTIFF’S MOTION TO MODIFY 14 CALIFORNIA DEPARTMENT OF THE SCHEDULING ORDER CORRECTIONS AND REHABILITATION, 15 et al., 16 Defendants. 17 18 ----oo0oo---- 19 Plaintiff Wendy Greene, individually and in her 20 capacity as successor in interest to the Estate of Michael 21 Hastey, brought this action under 42 U.S.C. § 1983 and California 22 law against defendants California Department of Corrections and 23 Rehabilitation (“CDCR”) and various employees at the C Yard High 24 Desert State Prison, where Hastey was murdered by fellow inmates. 25 (See Complaint (Docket No. 1).) Plaintiff now seeks to modify 26 the scheduling order on the grounds that the current deadlines 27 cannot be met due to discovery motions which are still pending 28 before a magistrate judge. (Docket No. 103.) Defendants argue 1 in opposition that the modification is not supported by good 2 cause and would prejudice their case. (Docket No. 104.)1 3 I. Background 4 Discovery in this matter commenced June 1, 2023, when 5 the parties exchanged initial disclosures. (Declaration of 6 Andrew J. Kopke (“Kopke Decl.”) (Docket No. 103-1) ¶ 2); 7 Declaration of Jennifer Burns (“Burns Decl.”) (Docket No. 104-1) 8 ¶ 2.) Plaintiff served her first requests for production 9 (“RFPs”) on July 14, 2023. (Kopke Decl. ¶ 3; Burns Decl. ¶ 3.) 10 Between September and December 2023, the parties met and 11 conferred, plaintiff served amended RFPs, and defendants served 12 amended and supplemental responses. (Kopke Decl. ¶ 5.) 13 Following this period, plaintiff subpoenaed the Office of the 14 Inspector General (“OIG”) and thereafter identified and described 15 documents and information in a privilege log which was disclosed 16 to defendant CDCR. (Id. ¶ 8.) Defendant CDCR maintained that 17 the discovery requested in the RFPs did not exist. (Id. ¶ 7.) 18 Plaintiff filed a motion to compel on August 2, 2024. 19 (Docket No. 48.) After a hearing, the Magistrate Judge denied 20 the motion. (Docket No. 73.) Plaintiff then filed a motion for 21 reconsideration on March 12, 2025, which is currently pending. 22 (Docket No. 74.) Defendants then filed a motion for a protective 23 order on June 2, 2025, which is also currently pending. (Docket 24 No. 92.) Both motions concern discovery plaintiff has been 25 seeking since the outset of this case, including its RFPs and the 26 1 Because the court finds it would not be assisted by 27 oral argument, the motion is decided on the papers pursuant to Local Rule 230(g). The scheduled October 27, 2025 hearing on the 28 motion is hereby VACATED. 1 documents produced pursuant to the OIG investigation. (Docket 2 Nos. 74, 92.) 3 The Magistrate Judge held a hearing on the motions on 4 August 4, 2025, and instructed the parties to meet and confer and 5 submit a joint letter on the discovery dispute. (Kopke Decl. ¶ 6 13.) In their letter, the parties agreed that the plaintiff’s 7 more recently submitted third set of RFPs -- which request much 8 of the same information as the first RFPs -- were now the focus 9 of their dispute. (Docket No. 102 at 1.) 10 In the instant motion, plaintiff argues chiefly that 11 since she “has been seeking the discovery at issue since the very 12 outset of the discovery process, her inability to meet the 13 current discovery deadlines cannot be attributed to a lack of 14 diligence.” (Docket No. 105 at 3.) 15 II. Discussion 16 “A schedule may be modified only for good cause and 17 with the judge's consent.” Fed. R. Civ. P. 16(b)(4). “Unlike 18 Rule 15(a)’s liberal amendment policy which focuses on the bad 19 faith of the party seeking to interpose an amendment and the 20 prejudice to the opposing party, Rule 16(b)’s ‘good cause’ 21 standard primarily considers the diligence of the party seeking 22 the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 23 604, 609 (9th Cir. 1992); see also Fed. R. Civ. P. 16, Advisory 24 Committee’s Notes (1983 Amendment) (directing courts to consider 25 whether a deadline “cannot reasonably be met despite the 26 diligence of the party seeking the extension”). 27 The court’s scheduling order issued on April 24, 2025, 28 sets, inter alia, the discovery deadline as November 19, 2025; 1 the dispositive motion deadline as March 19, 2026; the pretrial 2 conference as June 15, 2026; and the trial date as September 22, 3 2026. (See Docket No. 86.) Plaintiff seeks to extend all 4 deadlines by six months. (Docket No. 103-2.) 5 Defendants argue the extension is not supported by good 6 cause because plaintiff “has not actively pursued discovery, 7 including serving any new discovery requests or taking 8 depositions for over a year,” despite having “asked for and 9 received six other extensions of the discovery cutoff.” (Docket 10 No. 104 at 2.) Defendants further argue that plaintiff’s “lack 11 of diligence has and will continue to prejudice the CDCR 12 Defendant’s ability to timely and efficiently present their 13 defenses.” (Id. (citation modified).) 14 Much of defendants’ argument concerning diligence 15 appears to focus on the merits of plaintiff’s underlying 16 discovery requests. Defendants first state that denial of 17 plaintiff’s motion to compel “amounted to a strong repudiation” 18 of the argument that the CDCR was withholding documents. (Id. at 19 6. (citation modified).) Defendants then argue more generally 20 that plaintiff “is focusing on serving and litigating irrelevant 21 and disproportionate written discovery, which is extremely 22 costly,” and that the protracted discovery dispute regarding the 23 first RFPs imputes a lack of diligence to plaintiff, who seems to 24 have been doggedly seeking the same information for two years 25 while additional discovery requests have remained scant. (Id.) 26 Defendants may be correct that plaintiff’s singular 27 focus on this line of discovery is not an auspicious litigation 28 strategy, but that criticism does not go to the question of 1 whether plaintiff has been diligent in seeking it. While there 2 is no uniform definition of diligence, courts in this circuit 3 have suggested the term relates primarily to a party’s timeliness 4 in response to available information. See, e.g., Eckert Cold 5 Storage, Inc. v. Behl, 943 F. Supp. 1230, 1233 (E.D. Cal. 1996) 6 (denying motion because of plaintiff’s failure to explain what 7 new information led them to file, and why they waited seven 8 months to do so after receiving it); Jackson v. Laureate, Inc., 9 186 F.R.D. 604, 609 (E.D. Cal. 1999) (“Plaintiff fails to 10 demonstrate that her inability to comply with the Rule 16 11 Scheduling Order results from her having become aware of 12 information that she could not have reasonably foreseen at the 13 time the order became final.” (citation modified)). In Johnson, 14 for example, diligence was not found because the movant “failed 15 to heed clear and repeated signals” of his failure to “prosecute 16 the case properly,” and “that his attorneys failed to pay 17 attention to the responses they received” when filing their 18 pleadings. 975 F. 2d at 609-610. 19 Other factors in the diligence inquiry may include 20 “whether the movant was diligent in helping the court to create a 21 workable Rule 16 Order; whether matters that were not, and could 22 not have been, foreseeable at the time of the scheduling 23 conference caused the need for amendment; and whether the movant 24 was diligent in seeking amendment once the need to amend became 25 apparent.” United States ex rel. Terry v.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 ----oo0oo---- 10 11 WENDY GREENE, No. 2:23-cv-00082 WBS DMC 12 Plaintiff, 13 v. MEMORANDUM AND ORDER RE: PLAINTIFF’S MOTION TO MODIFY 14 CALIFORNIA DEPARTMENT OF THE SCHEDULING ORDER CORRECTIONS AND REHABILITATION, 15 et al., 16 Defendants. 17 18 ----oo0oo---- 19 Plaintiff Wendy Greene, individually and in her 20 capacity as successor in interest to the Estate of Michael 21 Hastey, brought this action under 42 U.S.C. § 1983 and California 22 law against defendants California Department of Corrections and 23 Rehabilitation (“CDCR”) and various employees at the C Yard High 24 Desert State Prison, where Hastey was murdered by fellow inmates. 25 (See Complaint (Docket No. 1).) Plaintiff now seeks to modify 26 the scheduling order on the grounds that the current deadlines 27 cannot be met due to discovery motions which are still pending 28 before a magistrate judge. (Docket No. 103.) Defendants argue 1 in opposition that the modification is not supported by good 2 cause and would prejudice their case. (Docket No. 104.)1 3 I. Background 4 Discovery in this matter commenced June 1, 2023, when 5 the parties exchanged initial disclosures. (Declaration of 6 Andrew J. Kopke (“Kopke Decl.”) (Docket No. 103-1) ¶ 2); 7 Declaration of Jennifer Burns (“Burns Decl.”) (Docket No. 104-1) 8 ¶ 2.) Plaintiff served her first requests for production 9 (“RFPs”) on July 14, 2023. (Kopke Decl. ¶ 3; Burns Decl. ¶ 3.) 10 Between September and December 2023, the parties met and 11 conferred, plaintiff served amended RFPs, and defendants served 12 amended and supplemental responses. (Kopke Decl. ¶ 5.) 13 Following this period, plaintiff subpoenaed the Office of the 14 Inspector General (“OIG”) and thereafter identified and described 15 documents and information in a privilege log which was disclosed 16 to defendant CDCR. (Id. ¶ 8.) Defendant CDCR maintained that 17 the discovery requested in the RFPs did not exist. (Id. ¶ 7.) 18 Plaintiff filed a motion to compel on August 2, 2024. 19 (Docket No. 48.) After a hearing, the Magistrate Judge denied 20 the motion. (Docket No. 73.) Plaintiff then filed a motion for 21 reconsideration on March 12, 2025, which is currently pending. 22 (Docket No. 74.) Defendants then filed a motion for a protective 23 order on June 2, 2025, which is also currently pending. (Docket 24 No. 92.) Both motions concern discovery plaintiff has been 25 seeking since the outset of this case, including its RFPs and the 26 1 Because the court finds it would not be assisted by 27 oral argument, the motion is decided on the papers pursuant to Local Rule 230(g). The scheduled October 27, 2025 hearing on the 28 motion is hereby VACATED. 1 documents produced pursuant to the OIG investigation. (Docket 2 Nos. 74, 92.) 3 The Magistrate Judge held a hearing on the motions on 4 August 4, 2025, and instructed the parties to meet and confer and 5 submit a joint letter on the discovery dispute. (Kopke Decl. ¶ 6 13.) In their letter, the parties agreed that the plaintiff’s 7 more recently submitted third set of RFPs -- which request much 8 of the same information as the first RFPs -- were now the focus 9 of their dispute. (Docket No. 102 at 1.) 10 In the instant motion, plaintiff argues chiefly that 11 since she “has been seeking the discovery at issue since the very 12 outset of the discovery process, her inability to meet the 13 current discovery deadlines cannot be attributed to a lack of 14 diligence.” (Docket No. 105 at 3.) 15 II. Discussion 16 “A schedule may be modified only for good cause and 17 with the judge's consent.” Fed. R. Civ. P. 16(b)(4). “Unlike 18 Rule 15(a)’s liberal amendment policy which focuses on the bad 19 faith of the party seeking to interpose an amendment and the 20 prejudice to the opposing party, Rule 16(b)’s ‘good cause’ 21 standard primarily considers the diligence of the party seeking 22 the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 23 604, 609 (9th Cir. 1992); see also Fed. R. Civ. P. 16, Advisory 24 Committee’s Notes (1983 Amendment) (directing courts to consider 25 whether a deadline “cannot reasonably be met despite the 26 diligence of the party seeking the extension”). 27 The court’s scheduling order issued on April 24, 2025, 28 sets, inter alia, the discovery deadline as November 19, 2025; 1 the dispositive motion deadline as March 19, 2026; the pretrial 2 conference as June 15, 2026; and the trial date as September 22, 3 2026. (See Docket No. 86.) Plaintiff seeks to extend all 4 deadlines by six months. (Docket No. 103-2.) 5 Defendants argue the extension is not supported by good 6 cause because plaintiff “has not actively pursued discovery, 7 including serving any new discovery requests or taking 8 depositions for over a year,” despite having “asked for and 9 received six other extensions of the discovery cutoff.” (Docket 10 No. 104 at 2.) Defendants further argue that plaintiff’s “lack 11 of diligence has and will continue to prejudice the CDCR 12 Defendant’s ability to timely and efficiently present their 13 defenses.” (Id. (citation modified).) 14 Much of defendants’ argument concerning diligence 15 appears to focus on the merits of plaintiff’s underlying 16 discovery requests. Defendants first state that denial of 17 plaintiff’s motion to compel “amounted to a strong repudiation” 18 of the argument that the CDCR was withholding documents. (Id. at 19 6. (citation modified).) Defendants then argue more generally 20 that plaintiff “is focusing on serving and litigating irrelevant 21 and disproportionate written discovery, which is extremely 22 costly,” and that the protracted discovery dispute regarding the 23 first RFPs imputes a lack of diligence to plaintiff, who seems to 24 have been doggedly seeking the same information for two years 25 while additional discovery requests have remained scant. (Id.) 26 Defendants may be correct that plaintiff’s singular 27 focus on this line of discovery is not an auspicious litigation 28 strategy, but that criticism does not go to the question of 1 whether plaintiff has been diligent in seeking it. While there 2 is no uniform definition of diligence, courts in this circuit 3 have suggested the term relates primarily to a party’s timeliness 4 in response to available information. See, e.g., Eckert Cold 5 Storage, Inc. v. Behl, 943 F. Supp. 1230, 1233 (E.D. Cal. 1996) 6 (denying motion because of plaintiff’s failure to explain what 7 new information led them to file, and why they waited seven 8 months to do so after receiving it); Jackson v. Laureate, Inc., 9 186 F.R.D. 604, 609 (E.D. Cal. 1999) (“Plaintiff fails to 10 demonstrate that her inability to comply with the Rule 16 11 Scheduling Order results from her having become aware of 12 information that she could not have reasonably foreseen at the 13 time the order became final.” (citation modified)). In Johnson, 14 for example, diligence was not found because the movant “failed 15 to heed clear and repeated signals” of his failure to “prosecute 16 the case properly,” and “that his attorneys failed to pay 17 attention to the responses they received” when filing their 18 pleadings. 975 F. 2d at 609-610. 19 Other factors in the diligence inquiry may include 20 “whether the movant was diligent in helping the court to create a 21 workable Rule 16 Order; whether matters that were not, and could 22 not have been, foreseeable at the time of the scheduling 23 conference caused the need for amendment; and whether the movant 24 was diligent in seeking amendment once the need to amend became 25 apparent.” United States ex rel. Terry v. Wasatch Advantage 26 Grp., LLC, 327 F.R.D. 395, 404 (E.D. Cal 2018) (internal 27 quotation marks and citation omitted). 28 There is nothing in plaintiff’s activity up to this 1 point suggesting the kind of delinquency that precludes a finding 2 of diligence. Plaintiff does not appear to be ignoring new 3 knowledge as it becomes available or failing to timely respond to 4 information. In her reply, she specifies unforeseen 5 circumstances that prompted prior modifications and delays, 6 including the addition of new defendants, the continual guidance 7 from the Magistrate Judge, and the responses to an amended 8 complaint. (See Docket No. 105 at 5-6.) Plaintiff’s responsive 9 and persistent engagement in the ongoing discovery dispute at 10 issue in this motion suggests she has been attentive to new 11 information and timely pursued discovery in light of what she 12 knows. Defendants question the viability of plaintiff’s 13 strategy, but the issue of whether a party has pursued their case 14 wisely is distinct from the issue of whether they have pursued it 15 diligently. Cf. Wong v. Regents of University of California, 410 16 F. 3d 1052, 1062 (9th Cir. 2005) (denying modification because of 17 plaintiff’s failure to act “on a more timely basis” in light of 18 his awareness). 19 As part of their criticism of plaintiff’s strategy, 20 defendants emphasize that this is the seventh request for 21 modification. (See Docket No. 104 at 8-9.) But plaintiff is not 22 solely responsible for that number; a review of the docket 23 indicates that all previous modifications to the scheduling order 24 were jointly requested, with defendants disputing the fact 25 discovery extension in only one instance. (See Docket Nos. 28, 26 43, 52, 57, 71, 83.) 27 Defendants further argue that modifying the scheduling 28 order would prejudice their case. (Docket No. 104 at 9.) But ee EI IEE III III EIDE EEE ESE I ON
1 neither evidence nor authority is offered to support this 2 argument. Moreover, “although the existence or degree of 3 | prejudice to the party opposing the modification might supply 4 additional reasons to deny a motion, the focus of inquiry is upon 5 the moving party’s reasons for seeking modification.” Johnson, 6 975 F. 2d at 604. 7 Because the court finds that the plaintiff has acted 8 diligently and that there will not be prejudice to defendants, 9 the court will grant plaintiff’s motion. 10 IT IS THEREFORE ORDERED that plaintiff’s motion to 11 modify the scheduling order (Docket No. 103) be, and the same 12 | hereby is, GRANTED. The scheduling order (Docket No. 86) is 13 | modified as follows: 14 1. Fact discovery shall be completed by May 19, 2026. 15 2. Experts and expert reports shall be disclosed by June 16 | 18, 2026. 17 3. Rebuttal experts shall be disclosed by July 21, 2026. 18 4. Expert discovery shall be completed by August 20, 2026. 19 5. All motions, except motions for continuances, temporary 20 restraining orders, or other emergency applications, shall be 21 filed by September 21, 2026. 22 6. The pretrial conference is set for December 14, 2026, 23 at 1:30 p.m. 24 7. The jury trial is set for February 17, 2027, at 9:00 25 a.m. 26 IT IS SO ORDERED . . 27 | Dated: October 21, 2025 allem Hh ah be WILLIAM B. SHUBB 28 UNITED STATES DISTRICT JUDGE