Opinion
1:13cv02109 DLB PC
09-01-2015
LIZBETH COLON, Plaintiff, v. ARAIN, et al., Defendants.
ORDER GRANTING DEFENDANT'S EX PARTE APPLICATION TO MODIFY DISCOVERY AND SCHEDULING ORDER (Document 39)
Plaintiff Lizbeth Colon ("Plaintiff") is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action. This action is proceeding on Plaintiff's First Amended Complaint for violation of the Eighth Amendment against Defendants Jones and Arain.
Defendants are represented by separate counsel. --------
The Court issued a Discovery and Scheduling Order on March 30, 2015, and the action is currently in discovery. The discovery cut-off is August 27, 2015, and the dispositive motion deadline is October 26, 2015.
Defendant Arain's July 17, 2015, motion to compel is pending. Plaintiff did not file an opposition to the motion.
On August 25, 2015, the Court issued an order to show cause to Plaintiff why this action should not be dismissed for Plaintiff's failure to participate in discovery and/or failure to prosecute this action. The time for filing a response has not yet passed.
Also on August 25, 2015, Defendant Jones filed an ex parte motion to extend the discovery deadline and dispositive motion cut-off dates. The Court deems the matter suitable for decision without an opposition.
Modification of the pretrial scheduling order requires a showing of good cause. Fed. R. Civ. P. 16(b)(4). "The schedule may be modified 'if it cannot reasonably be met despite the diligence of the party seeking the extension.'" Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)). "Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking the modification." Johnson, 975 F.2d at 609. "If the party seeking the modification 'was not diligent, the inquiry should end' and the motion to modify should not be granted." Zivkovic, 302 F.3d at 1087 (quoting Johnson, 975 F.2d at 609).
In this action, despite Defendant's diligence, Plaintiff has not responded to discovery or otherwise participated in this litigation. Indeed, the Court has issued an order to show cause to address this and will take further action as necessary.
For good cause, Defendant's motion is GRANTED. The Court extends the deadlines as follows:
Discovery Cut-Off: February 26, 2016
Dispositive Motion Deadline: April 26, 2016 IT IS SO ORDERED.
Dated: September 1 , 2015
/s/ Dennis L . Beck
UNITED STATES MAGISTRATE JUDGE