Opinion
No. CV-11-0140-PHX-LOA
12-13-2011
Olga Clarissa Ortega, Petitioner, v. Hillary Rodham Clinton, Secretary of State of the United States, Respondent.
ORDER
The Court has reviewed Petitioner's November 18, 2011 Disclosure of Expert Witness and Motion to Extend Time to File Written Report, doc. 44, and Respondent's Response to Petitioner's Motion to Extend Time Limits, doc. 45, which does not oppose Petitioner's Motion.
The Court's May 16, 2011 Rule 16 scheduling order sets firm deadlines for, among others, Petitioner's disclosure of expert testimony and reports by November 18, 2011, all discovery be completed by Monday, May 4, 2012, and dispositive motions be filed by June 22, 2012. (Doc. 33)
Petitioner's Motion indicates that "[b]eginning in early [to] mid-October, undersigned counsel . . . began interviewing potential witnesses who could qualify as experts under the Federal Rules." (Doc. 44 at 1-2) He "submits that good cause exists to extend the dates for submission of the reports required by Fed. R. Evid. 26(a)(2)(B)." (Id. at 2) Counsel acknowledges he "is aware of the Court's admonition in its Order of August 10, 2011, regarding the lack of diligence shown thus far and the unlikely need for extensions of the scheduling order. However, counsel submits that an extension in this matter will not prejudice the Respondent and that counsel has shown diligence in obtaining the services of an expert witness." (Id.) Petitioner's counsel represents he has interviewed eight potential experts to testify in this case and has settled on using Anna Ochoa O'Leary, Ph.D., Assistant Professor of Practice Dept. of Mexican American Studies, at the University of Arizona. Dr. O'Leary will purportedly testify regarding "her knowledge of the behavior of migrants whose children are born in the United States and yet are raised in Mexico [and] that it is [a] common practice for children born in the U.S. to also have been issued birth certificates or registrations in Mexico." (Id. at 1)
Federal Rule of Civil Procedure 16(b)'s "good cause" standard primarily considers the diligence of the party seeking the amendment. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). A district court may modify the pretrial schedule "if it cannot reasonably be met despite diligence of the party seeking the extension." Id. at 608; Fed.R.Civ.P. 16 advisory committee's notes (1983 amendment). "Good cause" means the Rule 16 scheduling deadlines cannot be met despite the party's exercise of diligence to do so, citing Miller & Kane, Federal Practice and Procedure § 1522.1 at 231 (2d ed. 1990). Id. "In these days of heavy case loads, trial courts . . . set schedules and establish deadlines to foster the efficient treatment and resolution of cases." Hostnut.Com, Inc. v. Go Daddy Software, Inc., 2006 WL 1042335, * 1 (D.Ariz. April 19, 2006) (quoting Wong v. Regents of the Univ. of Cal, 410 F.3d 1052, 1060 (9th Cir. 2005) (internal quotation marks omitted); also see, Williams v. City of Mesa, 2010 WL 2803880 (D.Ariz. July 15, 2010) (denying stipulated extension of Rule 16 deadlines because diligence to complete discovery had not been demonstrated).
While she has timely disclosed her expert's identity, Petitioner requests additional time to submit Dr. O'Leary report and opinions as required by Rule 26(a)(2)(B) and the Court's May 16, 2011 Rule 16 scheduling order. Because Petitioner's counsel has demonstrated due diligence in searching and locating an expert witness; the requested extension for disclosure of Dr. O'Leary report will not alter the scheduling order's deadlines for completing discovery and filing dispositive motions nor prejudice Respondent's compliance with the scheduling order; and Respondent has filed a dispositive motion on December 9, 2011, doc. 46.; the Court will grant Petitioner's Motion.
Good cause appearing,
IT IS ORDERED that Petitioner's Motion to Extend Time to File Written Report, doc. 44, is GRANTED. Petitioner's disclosure of all expert opinions and report under Rule 26(a)(2)(B), Fed.R.Civ.P., as to Anna Ochoa O'Leary, Ph.D. only, shall be made no later than Friday, January 6, 2012.
IT IS FURTHER ORDERED that Respondent's disclosure of expert opinions and reports required by Rule 26(a)(2)(B) and Rule 26(a)(2)(C), Fed.R.Civ.P., shall be made by Friday, February 3, 2012.
IT IS FURTHER ORDERED that true rebuttal expert opinions and reports solely to contradict or rebut evidence as required under Rule 26(a)(2)(A),(C), Fed.R. Civ.P. shall be made by Friday, February 24, 2012.
IT IS FURTHER ORDERED affirming all other orders and deadlines set forth in the Court's May16, 2011 Scheduling Order. (Doc. 33)
______________________
Lawrence O. Anderson
United States Magistrate Judge