Opinion
1:19-cv-01076-JLT-SKO (PC)
01-12-2023
JEREMY DELPHIN, Plaintiff, v. J. MORLEY, et al., Defendants.
ORDER GRANTING DEEFENDANTS' THIRD EX PARTE APPLICATION TO MODIFY THE DISCOVERY AND SCHEDULING ORDER
(Doc. 88)
SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE
Plaintiff Jeremy Delphin is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983.
I. RELEVANT BACKGROUND
On July 14, 2022, the Court issued its Discovery and Scheduling Order, setting forth deadlines for the completion of discovery and the filing of various motions. (Doc. 81.)
On October 3, 2022, the Court granted Defendants' first ex parte application to modify all discovery and pre-trial filing deadlines by 45 days. (Doc. 85.)
On November 16, 2022, the Court granted Defendants' second ex parte application to modify the discovery and scheduling order, extending the deadlines by 60 days. (Doc. 87.)
On January 10, 2023, Defendants filed a third ex parte application to modify the discovery and scheduling order. (Doc. 88.)
II. DISCUSSION
The instant application to modify the discovery and scheduling order is supported by the declaration of defense counsel Kandice H. Jung. (Doc. 88 at 7-9.) Defendants seek an extension of 45 days for all deadlines detailed in the Court's November 16, 2022 order, citing to staffing shortages and other issues at Plaintiff's institution. (Id. at 1.)
Plaintiff's deposition had been arranged for November 7, 2022. (Doc. 88 at 7, ¶ 3.) Defense counsel, however, was advised that morning Plaintiff would not be attending his scheduled deposition due to unexpected staffing shortages. (Id.) Defense counsel re-noticed Plaintiff's deposition for December 14, 2022, after securing that date with the prison. (Id. at ¶ 5.) On the morning of December 14, 2022, defense counsel was advised the deposition could not proceed due to unresolvable technological issues-the prison officials were unable to turn on the camera or audio features. (Id.) Defense counsel then secured the next available date for Plaintiff's deposition: January 10, 2023. (Id. at ¶ 6.)
On December 23, 2022, defense counsel served Plaintiff with an amended deposition notice, noticing Plaintiff's deposition for January 10, 2023. (Id. at ¶ 7.) On January 5, 2023, defense counsel spoke with Plaintiff by telephone to confirm Plaintiff had received the amended notice; Plaintiff confirmed he had received it. (Id. at ¶ 8.) Plaintiff further advised defense counsel he would attend the deposition and that “he was going to try and get an extension of time, due to his own issues litigating the case.” (Id.) On the morning of January 10, 2023, defense counsel was informed the deposition could not proceed due to issues with the computer equipment. (Id. at ¶ 9.) Defense counsel has neither secured another date for Plaintiff's deposition, nor has she been able to speak with Plaintiff. (Id. at ¶ 10.)
Defense counsel believes an extension of time is necessary to complete the factual investigation-in particular, Plaintiff's deposition-and to allow for the filing of a potential motion challenging exhaustion. (Doc. 88 at ¶ 11.) Defense counsel states she is working in good faith to identify alternate options for Plaintiff's deposition, including an in-person deposition, to avoid further delays. (Id. at ¶ 12.) Counsel advises she is unclear whether an in-person deposition will resolve all issues as she has been advised “there is a shortage of court reporters willing to conduct in-person depositions at CDCR prison facilities.” (Id.) Finally, defense counsel states that her request is not brought for the purpose of delay or harassment. (Id. at ¶ 13.)
III. CONCLUSION AND ORDER
Good cause appearing, IT IS HEREBY ORDERED that the Discovery and Scheduling Order be modified as follows:
1. The deadline for filing motions challenging the exhaustion of administrative remedies is extended from January 27, 2023 to March 13, 2023;
2. The deadline for amending the pleadings is extended from February 24, 2023, to April 10, 2023;
3. The deadline for the completion of all discovery, including filing motions to compel is extended from March 31, 2023, to May 15, 2023; and
4. The deadline for filing pre-trial dispositive motions is extended from May 29, 2023, to July 13, 2023.
No further extensions of time will be granted absent a showing of good cause. Any request for an extension of time for any deadline set forth above must be filed at least two weeks prior to expiration of the deadline.
IT IS SO ORDERED.