Opinion
No. CIV S-05-1298 RRB EFB P.
September 28, 2007
ORDER
Plaintiff is a prisoner without counsel seeking relief for alleged civil rights violations. See 42 U.S. § 1983. On September 6, 2007, defendants filed a motion for an extension of time to file and serve a motion for summary judgment. The court notes that the time for seeking summary judgment was set in the May 1, 2007, scheduling order. Accordingly, the court construes defendants' motion as one to modify the scheduling order, which is governed by Rule 16 of the Federal Rules of Civil Procedure.
A schedule may be modified upon a showing of good cause. Fed.R.Civ.P. 16(b). Good cause exists when the moving party demonstrates he cannot meet the deadline despite exercising due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Pursuant to the scheduling order, dispositive motions must be filed no later than October 19, 2007. Defendants assert that counsel's busy schedule makes it impossible comply with the schedule. Such an assertion may satisfy the standard under Rule 6 of the Federal Rules of Civil Procedure, but Rule 6 does not apply here. Counsel has not explained what he has done on this case, or what remains to be done but cannot regardless of his diligence. Thus, it appears from his motion that he simply has decided that this case is the least important in his case-load. This is not a basis for modifying the schedule.
Defendant has failed to make the showing required to modify the schedule. Nevertheless, in the interest of managing its docket and possibly eliminating or narrowing issues for trial, the court will extend the time to file a dispositive motion.
Accordingly, it hereby is ORDERED:
1. Defendants' September 6, 2007, motion for an extension of time to file a motion for summary judgment, construed as a motion to modify the scheduling order, is granted;
2. Defendants shall have until no later than November 16, 2007, to file and serve a dispositive motion. The court does not intend to extend this time.