Opinion
Case No.: 15cv2796-JM(BLM)
11-27-2017
JEFFORY FRY, Plaintiff, v. SAN DIEGO COUNTY, et al. Defendants.
ORDER GRANTING IN PART JOINT MOTION TO EXTEND DATES REGULATING DISCOVERY AND OTHER PRETRIAL PROCEEDINGS
[ECF No. 52]
On September 5, 2017, the parties filed a "JOINT MOTION TO EXTEND DATES REGULATING DISCOVERY AND OTHER PRETRIAL PROCEEDINGS." ECF No. 44. The parties sought to extend the remaining pretrial deadlines by four months. Id. at 1. In support, the parties stated that Plaintiff was recovering from back surgery and was unable to be deposed or undergo an independent medical examination at the time. Id. at 2. Additionally, the parties noted that there was a pending motion to dismiss in the matter [see ECF No. 43] set to be heard on October 2, 2017. ECF No. 44 at 2. After finding good case, the Court granted the parties' motion. ECF No. 45.
On November 21, 2017, the parties filed another "JOINT MOTION TO EXTEND DATES REGULATING DISCOVERY AND OTHER PRETRIAL PROCEEDINGS." ECF No. 52. The parties seek to continue the remaining case deadlines by another two to three months. Id. at 2. In support, the parties state that they should have asked for a six month continuance in their first joint motion to give Plaintiff sufficient time to recover and that "the holidays are now causing unavoidable delays." Id. In further support, the parties state that additional time is needed to secure Plaintiff's deposition, conduct an independent medical examination ("IME"), and to conclude discovery. Id. at 3.
Once a Rule 16 scheduling order is issued, dates set forth therein may be modified only "for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4); see also ECF No. 31 at 7 (stating that dates and times "will not be modified except for good cause shown"). The Rule 16 good cause standard focuses on the "reasonable diligence" of the moving party. Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n.6 (9th Cir. 2007); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294-95 (9th Cir. 2000) (stating Rule 16(b) scheduling order may be modified for "good cause" based primarily on diligence of moving party). Essentially, "the focus of the inquiry is upon the moving party's reasons for seeking modification." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). However, a court also may consider the "existence or degree of prejudice to the party opposing the modification . . . ." Id.
The parties have failed to establish good cause for continuing the remaining deadlines by another two to three months. Plaintiff's counsel states that Plaintiff's health is "starting to rebound" and that the parties "are now faced with the delays associated with the holidays". ECF No. 52-1, Declaration of Andre L. Verdun ("Verdun Decl.") at 2. Therefore, it appears that Plaintiff's health is no longer the motivating factor for the requested continuance, and while the Court is sympathetic to the challenges that come with the busy holiday season, that is not good cause to extend case deadlines by another two to three months, especially in a case that has been pending since December 11, 2015. See ECF No. 1. Additionally, the parties' decision to not propound any discovery at all because Plaintiff could not sit for a deposition or undergo an IME does not demonstrate diligence. Verdun Decl. at 2-3. However, given the current status of the case and time of year, the Court finds it appropriate to grant the parties a small continuance of the deadlines. Accordingly, the parties' motion is GRANTED IN PART as follows: ///
| Current Deadline | New Deadline | |
|---|---|---|
| Expert Designation | January 4, 2018 | January 26, 2018 |
| Rebuttal Experts | January 18, 2018 | February 16, 2018 |
| Fact Discovery | January 18, 2018 | February 16, 2018 |
| Expert Reports | February 16, 2018 | March 9, 2018 |
| Rebuttal Expert Reports | March 16, 2018 | April 6, 2018 |
| Expert Discovery | April 13, 2018 | May 8, 2018 |
| Dispositive Motions | June 15, 2018 | June 15, 2018 |
| Mandatory Settlement Conference | September 7, 2018at 9:30 a.m. | September 7, 2018at 9:30 a.m. |
| Confidential Settlement Statements | August 28, 2018 | August 28, 2018 |
| Memo of Contentions | September 21, 2018 | September 21, 2018 |
| Pre-trial Disclosures | September 21, 2018 | September 21, 2018 |
| Meet and Confer | September 28, 2018 | September 28, 2018 |
| Draft Pretrial Order | October 5, 2018 | October 5, 2018 |
| Proposed Final Pretrial Conference Order& Objections to Pretrial Disclosures | October 12, 2018 | October 12, 2018 |
| Pretrial Conference | October 19, 2018at 8:30 a.m. | October 19, 2018at 8:30 a.m. |
| Trial | November 26, 2018at 10:00 a.m. | November 26, 2018at 10:00 a.m. |
IT IS SO ORDERED. Dated: 11/27/2017
/s/_________
Hon. Barbara L. Major
United States Magistrate Judge