Opinion
CIV. NO. S-10-0266 WBS GGH
09-28-2011
RICK LEE HAZEN, Plaintiff, v. THE HOME DEPOT, INC., Defendant.
ORDER
Presently pending on this court's law and motion calendar for November 11, 2011, is plaintiff's motion for relief from the scheduling order. After reviewing the papers in support of and in opposition to the motion, the court has determined that the matter is suitable for decision without oral argument, and now issues the following order.
Plaintiff's counsel seeks an extension of time in which to conduct discovery because he was unable to complete depositions from February, 2011 until mid to late September, 2011, during which time he was diagnosed with tonsil cancer, and underwent three surgeries, as well as intensive chemotherapy and radiation treatments. The declaration of counsel Altemus states that his physicians advised him he will be unable to work full time until at least mid-September. Counsel states that he needs to take three depositions of Home Depot employees.
Defendant opposes the motion, arguing that plaintiff's counsel did not take any depositions during the five month period prior to being diagnosed with cancer.
However, Mr. Altemus' declaration also states that he is a sole practitioner and that his only law partner passed away in May, 2010. (Dkt. no. 25, ¶ 5.) Moreover, plaintiff's counsel's cancer most probably exhibited itself symptomatically well before its diagnosis. Finally, it is more than probable that plaintiff's counsel, upon getting back to work full time, has been smothered in work from many cases, not just this one. Plaintiff's counsel has demonstrated good cause for an extension.
Accordingly, IT IS ORDERED that:
1. The hearing scheduled for November 10, 2011, is vacated.
2. Plaintiff's motion for relief from scheduling order, filed August 22, 2011, (dkt. no. 23), is granted. The discovery cutoff is extended from August 23, 2011 to October 20, 2011.No other dates set forth in the previous scheduling order are affected.
Should defendant's witnesses not be available for deposition during this time period, the court will consider further extending the discovery cutoff.
Defendant is not prejudiced by the extension. The court assumes that plaintiff will not be filing a dispositive motion and therefore defendant's ability to file a dispositive motion by the October 28, 2011 deadline is not affected.
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Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE