Opinion
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, Sacramento, CA, Attorneys for Defendants Berghorst, Fox, Galanis, Malet, Montgomery, Rackley, Salinas, and Zachariah.
KERSHAW, CUTTER & RATINOFF, LLP, JOHN R. PARKER, JR., Attorneys for Plaintiff.
STIPULATION AND PROPOSED ORDER TO MODIFY AMENDED SCHEDULING ORDER CONCERNING DEADLINES FOR EXPERT DISCOVERY AND DISPOSITIVE MOTIONS AND TO DISMISS CERTAIN DEFENDANTS
MORRISON C. ENGLAND, Jr., Chief District Judge.
The parties, by and through their attorneys of record, seek to modify the amended scheduling order, dated September 6, 2012 (ECF No. 43), to allow Defendants to file their motion for summary judgment before the parties are required to disclose expert witnesses. The requested modification will not affect any deadline other than those related to expert discovery and dispositive motions. Good cause exists to modify the amended scheduling order because the requested modification will conserve resources, reduce litigation costs, and potentially lead to a resolution of the case without trial.
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.
The Court issued its original scheduling order on September 7, 2011. (ECF No. 36.) The parties previously requested two modifications of the scheduling dates to allow the parties to complete fact discovery. (ECF Nos. 37, 40.) On September 6, 2012, the Court issued an amended scheduling order requiring the parties to disclose expert witnesses by March 4, 2013, and exchange supplement expert reports on March 24. (ECF No. 43, 2:14-3:27.) The amended order also set out a schedule for filing dispositive motions and setting the last day to hear such motions on July 11, 2013. ( Id. 4:17-25.)
The parties completed fact discovery. During the course of discovery, the parties agreed to voluntarily dismiss certain Defendants. The parties also recognized that each side will likely need to retain and disclose about four to five expert witnesses-physician, neurologist, psychiatrist, accident reconstructionist, economist, and vocational or life coach. Before expending the cost and time to prepare and disclose expert reports under Federal Rule of Civil procedure 26, the parties agree that it will be more judicially and financially economical for Defendants to file, and have the Court rule on, their motion for summary judgment to determine what issues will remain. The parties further agreed that they will be in a better position to have meaningful settlement discussions after the summary-judgment motion is decided. Based on these factors, the parties agree to the following:
1. Defendants Fox, Malet, and Zachariah be dismissed from this action with prejudice with each party bearing his own costs and attorney's fees;
2. Defendants will file their motion for summary judgment on or before March 5, 2013;
3. The hearing on the motion for summary judgment will be set for April 18, 2013 at 2:00 p.m.;
4. The opposition and reply to the summary-judgment motion will be due as required under Local Rule 230;
5. Expert disclosures and reports will occur no later than August 9, 2013;
6. Supplemental/rebuttal expert reports will be due on September 13, 2013; and
7. The parties will complete expert discovery by November 1, 2013.
The remaining deadlines in the amended scheduling order will not be affected by the requested modifications and should remain in place.
IT IS SO STIPULATED.
ORDER
Based on the parties' stipulation and good cause appearing, the amended scheduling order, dated September 6, 2012 (ECF No. 43), is modified as follows:
1. Defendants shall file their motion for summary judgment on or before March 5, 2013.
2. The hearing on the motion for summary judgment is set for April 18, 2013 at 2:00 p.m. The opposition and reply must be filed as required under Local Rule 230.
3. The parties shall designate expert witnesses by no later than August 9, 2013, and shall comply with all the requirements set forth in Section V of the amended scheduling order.
4. Supplemental/rebuttal expert reports are due by September 13, 2013.
5. The parties shall complete expert discovery by November 1, 2013.
Except as listed above, the amended scheduling order, dated September 6, 2012, remains in place and all other dates, including trial-related dates, remain as set forth in the order.
IT IS FURTHER ORDERED that Defendants Fox, Malet, and Zachariah are dismissed with prejudice. Each party shall bear his own costs and attorney's fees.
IT IS SO ORDERED.