(PS) Manning v. United States

2:19-cv-00494 | E.D. Cal. | Feb 5, 2021

Case 2:19-cv-00494-TLN-AC Document 81 Filed 02/05/21 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ANTHONY L. MANNING, No. 2:19-cv-00494-TLN-AC Plaintiff, v. ORDER UNITED STATES OF AMERICA, Defendant. Plaintiff Anthony L. Manning (“Plaintiff”) is proceeding in this action pro se . The matter was referred to a United States Magistrate Judge pursuant to Local Rule 302(c)(21). On December 10, 2020, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty (20) days. (ECF No. 77.) On December 21, 2020, Plaintiff filed Objections to the Findings and Recommendations. (ECF No 78.) Defendant filed a Response to the objections on December 28, 2020. (ECF No. 79.)

This Court reviews de novo those portions of the proposed findings of fact to which objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines , 656 F.2d 1309" date_filed="1981-08-31" court="9th Cir." case_name="McDonnell Douglas Corporation v. Commodore Business MacHines Inc. And Commodore Business MacHines (Canada) Limited">656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied , 455 U.S. 920" date_filed="1982-01-25" court="SCOTUS" case_name="Scoles v. Donovan">455 U.S. 920 (1982); see also Dawson v. Marshall , 561 F.3d 930" date_filed="2009-03-06" court="9th Cir." case_name="Dawson v. Marshall">561 F.3d 930, 932 (9th Cir. 2009). As to any portion of the proposed findings of fact to which no objection has been made, the Court assumes its correctness and Case 2:19-cv-00494-TLN-AC Document 81 Filed 02/05/21 Page 2 of 3 decides the motions on the applicable law. See Orand v. United States , 602 F.2d 207" date_filed="1979-08-14" court="9th Cir." case_name="Donald Milton Orand v. United States">602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo . See Britt v. Simi Valley Unified Sch. Dist. , 708 F.2d 452" date_filed="1983-06-13" court="9th Cir." case_name="Bryant Britt v. Simi Valley Unified School District: John Duncan George Hawkins Robert Marcus Allen Jacobs Kenneth Ashton Frederick Riess Viola Brooks Lewis Roth Stephen Hogg Sandra Binns Helen Carrico">708 F.2d 452, 454 (9th Cir. 1983).

Having reviewed the file under the applicable legal standards, the Court finds the Findings and Recommendations to be supported by the record and by the magistrate judge’s analysis. In his Objections to the Findings and Recommendations, Plaintiff concedes the magistrate judge’s recommendation “is sound,” but nevertheless argues he was denied due process because of the Court shutdown caused by the COVID-19 virus and seeks an order modifying the initial Scheduling Order ( see ECF No. 9 at 2–3) to revert proceedings in this matter to the pre-discovery stage. (ECF No. 78 at 2–3.) Yet Plaintiff fails to advance any argument showing how the Court shutdown affected his due process rights or impacted his ability to oppose the Motion for Summary Judgment currently before this Court. Furthermore, because Plaintiff did not raise any concerns regarding the Court shutdown until after the issuance of Findings and Recommendations on Defendant’s Motion for Summary Judgment and nearly a year after the shutdown was effected, Plaintiff’s objections are untimely. Thus, to the extent Plaintiff seeks to reopen discovery in order to identify an expert witness for purposes of defeating Defendant’s Motion for Summary Judgment, Plaintiff fails to demonstrate he has exercised due diligence in seeking the modification and therefore fails to establish good cause exists to modify the Scheduling Order. See Fed. R. Civ. P. 16(b)(4); see also Johnson v. Mammoth Recreations, Inc. , 975 F.2d 604" date_filed="1992-09-14" court="9th Cir." case_name="Dairl Johnson Claudine Johnson v. Mammoth Recreations, Inc.">975 F.2d 604, 610 (9th Cir. 1992) (“Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking the amendment.”). Therefore, to the extent he moves to modify the Scheduling Order (ECF No. 78 at 2–3), Plaintiff’s Motion is DENIED. Based on these reasons, Plaintiff’s objections are overruled.
Accordingly, IT IS HEREBY ORDERED that: 1. The Findings and Recommendations filed December 10, 2020 (ECF No. 77), are
adopted in full; /// /// Case 2:19-cv-00494-TLN-AC Document 81 Filed 02/05/21 Page 3 of 3
2. To the extent Plaintiff’s Objections to the Findings and Recommendations may be construed as a Motion to Modify the Scheduling Order (ECF No. 9), Plaintiff’s Motion (ECF No. 78) is DENIED;
3. Defendant’s Motion for Summary Judgment (ECF No. 70) is GRANTED; and 4. The Clerk of the Court is directed to enter Judgment for Defendant and close this case.


DATED: February 5, 2021