Opinion
Case No.: 16cv2862-BEN-MDD
10-24-2017
DEBORAH MAIORANO, individually, and as Successor In Interest to ANTHONY MAIORANO, Plaintiff, v. HOME DEPOT USA, INC., and, RESIN PARTNERS, INC., Defendants.
ORDER ON JOINT MOTION TO AMEND THE SCHEDULING ORDER
[ECF NO. 30]
Before the Court is the Joint Motion of the parties, filed on October 5, 2017, to amend the Scheduling Order. (ECF No. 30). The parties seek a 4 month continuance of the discovery cutoff and the consequent pretrial dates. (Id.) As provided herein, the motion is DENIED.
LEGAL STANDARD
Rule 16(b)(4), Fed. R. Civ. P., provides that a schedule may be modified "only for good cause." "Rule 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, 609 (9th Cir. 1992); Sharp v. Covenant Care LLC, 288 F.R.D. 465, 467 (S.D. Cal. 2012). Rule 1, Fed. R. Civ. P., provides that the Federal Rules of Civil Procedure "should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding."
DISCUSSION
The Complaint originally was filed in the Superior Court for San Diego County on September 29, 2016, and removed to this Court on November 22, 2016. (ECF No. 1). The Complaint alleges that Plaintiff's decedent, Anthony Maiorano, died as a consequence of injuries suffered when a sawhorse purchased from Defendant Home Depot and manufactured by Defendant Resin Partners, collapsed due to defective design of the sawhorse.
The parties conducted their required conference, pursuant to Rule 26(f), Fed. R. Civ. P., on January 24, 2017, and filed their Joint Discovery Plan on February 8, 2017. (ECF No. 12). The Early Neutral Evaluation and Case Management Conference was held telephonically on February 16, 2017. (ECF No. 17). The operative Scheduling Order was filed on February 17, 2017. (ECF No. 18). Discovery has been open, therefore, since January 24, 2017, following the completion of the Rule 26(f) conference. Since many parties do not conduct discovery until the Case Management Conference is held, the Court will give the parties the benefit of the doubt and say that discovery opened no later than February 16, 2017.
The instant motion presents Plaintiff's request to extend the case management order for 4 months primarily as a consequence of a discovery dispute filed the same date as this motion, October 5, 2017. (ECF No. 29). Defendants join in the request. (ECF No. 30 at 5). The discovery dispute has been resolved by an Order filed this date and does not result in substantial or meaningful additional discovery. (ECF No. 32). The Court finds that the dispute was not so substantial as to justify the instant request for additional time.
Of greater consequence, although Plaintiff did not disclose the date that the discovery requests were served upon Defendants, Defendants initial responses were served on Plaintiff on June 30, 2017. (ECF No. 29 at 2-3). Unless relief was provided by Plaintiff, the requests at issue were served on Defendants on or about May 30, 2017. See Rule 34(b)(2)(A), Fed. R. Civ. P. By that point, discovery had been open for at least 3.5 months. Although stating that "several" percipient witness depositions have been taken and premises inspected, Plaintiff has not demonstrated due diligence sufficient for this request to be granted.
CONCLUSION
The instant Joint Motion to Amend the Scheduling Order is DENIED.
IT IS SO ORDERED. Dated: October 24, 2017
/s/_________
Hon. Mitchell D. Dembin
United States Magistrate Judge