Opinion
No. 2:09-cv-00711 KJM-AC
03-28-2013
GREGORY BALDWIN, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al. Defendants.
KAMALA D. HARRIS Attorney General of California DAVID A. CARRASCO Supervising Deputy Attorney General DIANA ESQUIVEL Deputy Attorney General Attorneys for Defendants SHOOK, HARDY & BACON, LLP RANDALL HAIMOVICI RACHAEL M. SMITH NAOKI S. KANEKO Attorneys for Plaintiff
KAMALA D. HARRIS, State Bar No. 146672
Attorney General of California
DAVID A. CARRASCO, State Bar No. 160460
Supervising Deputy Attorney General
DIANA ESQUIVEL, State Bar No. 202954 Deputy Attorney General
Attorneys for Defendants Barton, Fannon, and Gray
STIPULATION AND PROPOSED
ORDER TO MODIFY FURTHER
SCHEDULING ORDER, CONTINUE
THE TRIAL, AND REOPEN
DISCOVERY
The parties, by and through their attorneys of record, seek to modify the further scheduling order, dated November 26, 2012 (ECF No. 94), to continue the deadline for filing the joint pretrial statement and the dates for the pretrial conference and trial and to reopen discovery for the limited purpose of deposing Defendants and obtaining Plaintiff's medical records. Good cause exists to modify the scheduling order because Plaintiff's counsel were recently appointed to represent Plaintiff and require more time to familiarize themselves with the case and conduct limited discovery. Also, defense counsel has another trial that conflicts with the trial here.
A scheduling order may be modified only upon a showing of good cause and by leave of Court. Fed. R. Civ. P. 6(b)(1)(A), 16(b)(4); see, e.g., Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (describing the factors a court should consider in ruling on such a motion). In considering whether a party moving for a schedule modification has good cause, the Court primarily focuses on the diligence of the party seeking the modification. Johnson, 975 F.2d at 609 (citing Fed. R. Civ. P. 16 advisory committee's notes of 1983 amendment). "The district court may modify the pretrial schedule 'if it cannot reasonably be met despite the diligence of the party seeking the amendment.'" Id. (quoting Fed. R. Civ. P. 16 advisory committee notes of 1983 amendment). Parties must "diligently attempt to adhere to that schedule throughout the subsequent course of the litigation." Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. Cal. 1999); see Marcum v. Zimmer, 163 F.R.D. 250, 254 (S.D. W.Va. 1995). In part, the "good cause" standard requires the parties to demonstrate that "noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding her diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 Scheduling conference . . ." Jackson, 186 F.R.D. at 608.
On November 26, 2012, the Court issued a further scheduling order setting the trial in this matter for June 24, 2013. (ECF No. 94.) On January 24, 2013, the Court granted Plaintiff's motion for the appointment of counsel, and on February 13, 2013, Randall Haimovici, Amir Nassihi, and Rachael Smith were appointed to represent Plaintiff. (ECF Nos. 95, 100.) In its February 2013 order, the Court directed the parties to file a joint pretrial statement by April 4, 2013, and set the pretrial conference for April 18, 2013. (ECF No. 95.)
Naoki S. Kaneko subsequently substituted in for Amir Nassihi. (See ECF No. 101.)
Plaintiff's newly appointed counsel require more time to familiarize themselves with the case. They have not had the opportunity to meet with their client, which is necessary before they engage in meaningful discussion regarding the contents of the joint pretrial statement. Also, based on Plaintiff's counsel's preliminary review of the filings in this case, they have determined that they will need to obtain Plaintiff's updated medical files and take the deposition of the remaining Defendants. In addition to Plaintiff's counsel's need for additional time, defense counsel has a conflict with the current trial date; she has another trial scheduled to start on June 25, 2013, in the matter of McDonald v. Clark (E.D. Cal. No. 1:09-cv-0730 LJO-SKO). Based on these factors, the parties agree to the following:
1. The trial be continued to December 2 or 9, 2013, or any other date around this period that is available on the Court's calendar;
2. The pretrial conference be continued to October 17 or 24, 2013, or any other date around this period available to the Court;
3. The joint pretrial statement be due two weeks before the newly-scheduled pretrial conference;
4. Discovery be reopened for the limited purpose of permitting Plaintiff's counsel to depose the Defendants and obtain Plaintiff's medical records and that this discovery be completed by August 2, 2013; and
5. If during the course of the limited discovery, the parties determine that medical expert testimony will be necessary at trial, the parties will make expert disclosures as required under Federal Rule of Civil Procedure 26 by July 29, 2013, and any rebuttal or supplemental reports will be due by August 23, 2013. Expert discovery will be completed by September 30, 2013.
IT IS SO STIPULATED.
Respectfully submitted,
KAMALA D. HARRIS
Attorney General of California
DAVID A. CARRASCO
Supervising Deputy Attorney General
DIANA ESQUIVEL
Deputy Attorney General
Attorneys for Defendants
SHOOK, HARDY & BACON, LLP
RANDALL HAIMOVICI
RACHAEL M. SMITH
NAOKI S. KANEKO
Attorneys for Plaintiff
ORDER
Based on the parties' stipulation and good cause appearing, the further scheduling order, dated November 26, 2012 (ECF No. 94), is modified as follows:
1. Trial is continued to December 2, 2013, at 9:00 a.m. in Courtroom 3.
2. The pretrial conference is continued to October 17, 2013, at 3:30 p.m. in Courtroom 3.
3. A joint pretrial statement is due no later than fourteen days before the pretrial conference.
4. Discovery is reopened for the limited purpose of permitting Plaintiff's counsel to depose Defendants Barton, Fannon, and Gray and to obtain Plaintiff's medical records.
5. If the parties determine that medical expert testimony will be necessary at trial, the parties shall make expert disclosures as required under Federal Rule of Civil Procedure 26 by July 29, 2013. Any rebuttal or supplemental reports shall be due by August 23, 2013.
6. Fact discovery must be completed by August 2, 2013, and expert discovery must be completed by September 30, 2013.
IT IS SO ORDERED.
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UNITED STATES DISTRICT JUDGE