Foster v. State of Nevada

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA [3] AMBER FOSTER, ) 4 ) Plaintiff, ) Case No.: 2:19-cv-00969-GMN-BNW [5] vs. ) ) ORDER [6] STATE OF NEVADA, et al., ) 7 ) Defendants. ) 8 ) [9] 10 Pending before the Court is the Motion for Judgment, (ECF No. 47), filed by Defendants 11 Harold Wickham, Dwight Neven, and Richard Ashcraft (collectively, “Defendants”). Also 12 pending before the Court is Defendants’ Motion for Leave to File the Motion for Judgment, 13 (ECF No. 52). Plaintiff did not file Responses. 14 On July 5, 2022, this Court ordered Defendants to show cause as to why this Court 15 should not deny their Motion for Judgment on the Pleadings, (ECF No. 47), as untimely 16 because Defendants filed the Motion for Judgment after the dispositive motions deadline set in 17 the Scheduling Order, (ECF No. 27). (See Min. Order, ECF No. 50). In response, Defendants 18 assert that Federal Rules of Civil Procedure 12(c) does not specify a cut-off deadline for when 19 Motions for Judgment on the Pleadings may be filed. (Resp. to Min. Order at 3–4, ECF No. 20 51). 21 Federal Rule of Civil Procedure 12(c) states that a party may move for judgment on the 22 pleadings “after the pleadings are closed—but early enough not to delay trial.” See Fed. R. Civ. 23 Pro. 12(c). Though the FRCP does not specify a specific deadline, the Scheduling Order 24 clearly states that “[n]o motion filed [after 30 days after the close of discovery] will be 25 considered by the Court unless the Court grants an exception for good cause shown.” 1 (Scheduling Order 3:23-24, ECF No. 27 ). “Rule 16(b)’s ‘good cause’ standard primarily 2 considers the diligence of the party seeking the amendment.” Johnson v. Mammoth 3 Recreations, 975 F.2d 604, 609 (9th Cir. 1992). In particular, courts look to whether the 4 deadline set in the scheduling order “cannot reasonably be met despite the diligence of the party 5 seeking the amendment.” Id. “[C]arelessness is not compatible with a finding of diligence and 6 offers no reason for a grant of relief.” Id. Although prejudice to the opposing party may also be 7 considered, the focus of the inquiry is on the movant’s reasons for seeking modification. Id. “If 8 that party was not diligent, the inquiry should end.” Id. The party seeking amendment bears the 9 burden of establishing diligence. See, e.g., Morgal v. Maricopa County Bd. Of Sup’rs, 284 10 F.R.D. 452, 460 (D. Ariz. 2012). 11 Here, Defendants fail to demonstrate good cause to modify the scheduling order. Their 12 suggested reasons—that the prior assigned attorney was unable to renew his motion due to 13 personal health reasons, and that the case was not reassigned until after the dispositive motions 14 deadline—are not good cause to delay the current case, which is currently scheduled for trial in 15 April 2023. (See Order Granting Joint Pretrial Order, ECF No. 54). See Johnson, 975 F.2d at 16 609. Though the Federal Rules of Civil Procedure do not specify a deadline to file a Motion for 17 Judgment on the Pleadings, the Scheduling Order in this case does. (Scheduling Order 3:23–24, 18 ECF No. 27). Any dispositive motions were due on January 20, 2022—120 days after entry of 19 the Scheduling Order. (See Min. Order, ECF No. 49). Defendants did not file their Motion for 20 Judgment until July 1, 2022. (See Mot. J., ECF No. 47). Given the current status of the case 21 and Defendants’ failure to demonstrate good cause, the Court finds Defendants’ Motion for 22 Judgment on the Pleadings untimely and does not find good cause to modify the scheduling 23 order.1 [24] 25 1 Additionally, the Court finds that Defendant’s Motion for Judgment on the Pleadings likely lacks merit. Defendants claim that Plaintiff’s case is actually a habeas petition and not a 1983 suit because, according to Defendants, Plaintiff is seeking a reduced sentence. (Mot. J. 5:7–8:5, ECF No. 47). Plaintiff, however, seeks an 1 Accordingly, 2 IT IS HEREBY ORDERED that Defendants’ Motion for Judgment on the Pleadings, 3 (ECF No. 47) is DENIED. 4 IT IS FURTHER ORDERED that Defendants’ Motion for Leave to File, (ECF No. 52) 5 is DENIED. 6 DATED this __1_5__ day of August, 2022. [7] 8 ___________________________________ Gloria M. Navarro, District Judge [9] UNITED STATES DISTRICT COURT [23] 24 order requiring the disciplinary board to overturn her disciplinary ruling and clean her record. (Am. Compl. at 9, ECF No. 7). Defendant’s claim that she is seeking recovery of her good time credits does not appear applicable 25 in this case as Plaintiff lost her canteen rights and phone rights. (See id. at 7). There is no mention of good time credits in her Amended Complaint, and Defendants fail to explain how her sought relief relates to her good time credits.