Opinion
CV-22-00062-TUC-JCH-BGM
03-31-2023
Betty Stensrud, a single individual in her sole and separate right, Plaintiff, v. Thomas Friedberg, et al., Defendants.
REPORT AND RECOMMENDATION RE: DEFENDANTS' MOTION TO MODIFY SCHEDULING ORDER (DOC. 46)
HONORABLE BRUCE G. MACDONALD, UNITED STATES MAGISTRATE JUDGE.
The Court is in receipt of Defendants' Notice of Motion and Motion to Modify Scheduling Order (Defendants' Motion to Modify Scheduling Order) (Doc. 46), to which Plaintiff filed a response (Doc. 51), and Defendants replied (Doc. 56). Defendants also filed a Suupplemental [ sic ] Declaration of Thomas F. Friedberg in Support of Defendants' Motion to Modify Sheduling [ sic ] Order (Defendants' Supplemental Decl.) (Doc. 50).
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Judge deny the Petition (Doc. 1).
Rules of Practice of the United States District Court for the District of Arizona.
The Magistrate Judge recommends the District Judge deny Defendants' Motion to Modify Scheduling Order (Doc. 46).
Before addressing the substance of Defendants' Motion to Modify Scheduling Order (Doc. 46), the Court will first address some procedural matters.
I. PROCEDURAL DEFICIENCIES
A. Defendants' Proposed Supplemental Rule 26 Report by Dr. Eades
Defendants attached the proposed supplemental Rule 26 Report authored by Dr. Eades and dated December 9, 2022, as Exhibit A (Supplemental Rule 26 Report) (Doc. 501) to a separately filed Supplemental Declaration of Thomas F. Friedberg In Support of Defendants' Motion to Modify Sheduling [sic] Order filed December 13, 2022 (Defendants' Supplemental Declaration) (Doc. 50).
The Court notes, Defendants filed on December 13, 2022-one day prior to the due date for Plaintiff's response-Defendants' Supplemental Declaration (Doc. 50) and Supplemental Rule 26 Report (Doc. 50-1). As these documents (Doc. 50 and Doc. 50-1), were filed separately from Defendants' Motion to Modify the Scheduling Order (Doc. 46), it is not clear to the Court whether Plaintiff had the benefit of receipt and review of Defendants' Supplemental Declaration (Doc. 50) and Supplemental Rule 26 Report (Doc. 50-1), prior to Plaintiff filing the Response on December 14, 2022 (Doc. 51).
In addition to potential prejudice suffered by Plaintiff as a result of Defendants' delay in filing, separately, Defendants' Supplemental Declaration (Doc. 50) and Supplemental Rule 26 Report (Doc. 50-1), from the Motion to Modify (Doc. 46), Defendants' separately filed documents appear to the Court as attempts to circumvent the page limits as set forth in Local Rule, LRCiv 7.2(e) which provides, in pertinent part, “[u]nless otherwise permitted by the Court, a motion including its supporting memorandum, may not exceed seventeen (17) pages, exclusive of attachments and any required statement of facts.” LRCiv 7.2(e). Defendants' Motion to Modify Scheduling Order (Doc. 46) is approximately twelve (12) pages, however, includes two attached declarations: 1) Declartion [ sic ] of Brooke Niles Rubio in Support of Defendants' Motion to Modify Scheduling Order (Doc. 46-2), five (5) pages; and 2) Declaration of Thomas F. Friedberg in Support of Defendants' Motion to Modify Sheduling [ sic ] Order (Doc. 46-3), three (3) pages. Defendants' separately filed on December 13, 2022, Defendant's Supplemental Declaration (Doc. 50), two (2) pages, and Supplemental Rule 26 Report (Doc. 50-1).
Rules of Practice and Procedure of the U.S. District Court for the District of Arizona.
“Declarations, which are supposed to ‘set forth facts as would be admissible in evidence,' should not be used to make an end-run around the page limitations of Rule 7 by including legal arguments outside of the briefs.” King Cnty. v. Rasmussen, 299 F.3d 1077, 1082 (9th Cir. 2002).
B. Defendants' Reply
Similarly, Defendants' Reply (Doc. 56), attached as an exhibit, a Declaration of Thomas F. Friedberg In Support of Reply to Opposition to Defendants' Motion to Modify Sheduling [ sic ] Order (Doc. 56-1).
According to the Local Rules of Procedure, LRCiv 7.2(e)(2), “unless otherwise permitted by the Court, a reply including its supporting memorandum may not exceed eleven (11) pages, exclusive of attachments.” Although Defendants' Reply (Doc. 56) is only eight (8) pages, Defendants' attached declaration (Doc. 56-1) is six (6) pages, and totals fourteen (14) pages. The page limit for replies is eleven (11) pages under LRCiv 7.2(e)(2). Exceeding the page limits, combined with the separately filed Defendants' Supplemental Declaration (Doc. 50), and the filing of Defendants' Supplemental Declaration (Doc. 50) one day prior to the due date for the filing of Plaintiff's Response (Doc. 51), raises procedural concerns for the Court.
Defendants' use of declarations-particularly given the fact that Defendant Friedberg filed a Notice of Appearance on March 9, 2022 (Doc. 15), as notice to the Court that he is representing himself on his own behalf, and on behalf of Defendant Bunge, as co-counsel to Eric Thomson-creates great pause for the Court, when “[declarations, which are supposed to ‘set forth facts as would be admissible in evidence,' should not be used to make an end-run around the page limitations[.]” King Cnty., 299 F.3d at1082.
Under LRCiv 7.2(i), “If a motion does not conform in all substantial respects with the requirements of this Local Rule [. . .] such non-compliance may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily.” LRCiv 7.2(i). Although summary dismissal of Defendants' Motion to Modify Scheduling Order (Doc. 46) is appropriate and within the Court's discretion, out of an abundance of caution, Magistrate Judge recommends the District Judge dismiss Defendants' Motion to Modify Scheduling Order (Doc. 46) based on the merits.
II. BACKGROUND
Defendants' Motion to Modify Scheduling Order (Doc. 46) submits that “good cause exists to modify the Scheduling Order due to ‘new evidence' obtained after the September 1, 2022 expert disclosure date.” Defendants' Motion to Modify Scheduling Order (Doc. 46 at 2). Defendants seek leave to modify the scheduling order to submit a supplemental report by Dr. Eades.
Defendants' proposed grounds for modification of the scheduling order, includes as “new evidence,” the following: 1) the Kootenai Wound Clinic serial wound photographs from June 15, 2021 through July 13, 2021; and 2) the September 29, 2022 deposition of Plaintiff transcribed on October 4, 2022.
III. PARTIES' POSITIONS
A. Defendants Position
Defendants contend the Office Visit Notes referenced photographs that were not included with the initial disclosure and Defendants were not able to acquire the photographs until after the September 1, 2022 expert disclosure deadline.
The Scheduling Order filed April 15, 2022 (Doc. 19), provides in pertinent part:
• Full and complete initial expert disclosures as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure shall occur on or before September 1, 2022.
• Full and complete rebuttal expert disclosure as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure on or before October 3, 2022.”)Scheduling Order (Doc. 19).
1. Office Visits
Defendants attached the records of the Kootenai Wound Clinic Office Visits from June 15, 2021 through July 13, 2021 (Doc. 56-5) as Exhibit C to Defendants' Reply (Doc. 56). In pertinent part, the Office Visits provide:
The exhibits attached to Defendants' Reply (Doc. 56) include the following:
• Exhibit A - Letter to from Thomas Friedberg to Attorney Schiller dated September 11, 2021 re: Confidential Settlement Communication with fourteen (14) health authorizations requested and attached (Doc. 56-3)
• Exhibit B - Email dated September 28, 2021 from Attorney Schiller to Thomas Friedberg re: demand package (Doc. 56-4)
• Exhibit C - Records from Kootenai Wound Clinic from June 1, 2021 through July 13, 2021 (Doc. 56-5)See Defendants' Reply (Doc. 56) attached exhibits.
• [05/25/21 - Initial Visit (not included)]
• 06/01/21 - “Wound(s) cleansed with Skintegrity wound cleanser, rinsed with NS, measured, and photographed.” (Doc. 56-5 at 2)
• 06/15/21 -
o “She has a new wound - skin tear lateral and distal to the bite. She reports it is the site of a very small prior wound that was not getting wound care previously. Cleansed with Skintegrity, photographed. Tolerated well.” (Doc. 56-5 at 8)
o “RN, MJH: Betty presented with wound #2 new to this visit; appears to be a skin tear from “bumping” her leg. Photographed.” (Doc. 56-5 at 12)
• 06/29/21 - “76-year-old female who sustained a dog bite to the left lower leg on April 11, both of her wounds are healing nicely[.]” (Doc. 56-5 at 19)
• 07/13/21 - “RN NI: Pictures taken. Cleansed with SkinTegrity. Soaked a scab off the shin wound revealing 100% epithelial tissue beneath. Lower leg wound almost healed, two small nibbles of area each approx. 0.1 x0.1 x less than 0.1 cm” (Doc. 56-5 at 25)See Defendants' Reply (Doc. 56), Exhibit C (Doc. 56-5).
2. Dr. Eades Rule 26 Report dated August 23, 2022
Attached as Exhibit A to Defendants' Motion to Modify Scheduling Order (Doc. 46), is Dr. Eades original Rule 26 Report, dated August 23, 2022 (Doc. 46-5 at 6). On Page Two of Dr. Eades Rule 26 Report, he states, in pertinent part:
On physical examination of the patients' left lower leg there is a healed wound of the skin in the mid-portion of the lateral aspect that consists of a 3 x 4 cm area of moderately hyperpigmented skin surrounding a central triangular area of scar tissue that is flat, slightly thick, and moderately hypopigmented. There are a few smaller healed wounds visible over the shin located medial to the bite wound.” [. . .] “The healed, nearby wounds in the photographs are not visible in the photos taken at the time of the bite and are most likely the result of other injuries that occurred sometime after the dog bite.See Defendants' Motion to Modify (Doc. 46) Exhibit A (Doc. 46-5 at 7) (emphasis added).
3. Declaration of Brooke Niles Rubio dated December 1, 2022
Attached to Defendants' Motion to Modify Scheduling Order (Doc. 46), is a Declaration of Brooke Niles Rubio dated December 1, 2022 (Doc. 46-2), wherein she attests, in pertinent part:
On or about July 16, 2022, I was requested by Thomas F. Friedberg to obtain the wound photographs of Plaintiff, Betty Stensrud, from Kootenai Wound Clinic in Idaho. On this date, I sent by U.S. mail and facsimile a records request for all medical records, including the wound photographs.See Defendants' Motion to Modify (Doc. 46) Decl. of Brooke Rubio (Doc. 46-2 at 2, ¶ 3).
4. Photographs
Defendants attached the ‘newly' acquired photographs, as Exhibit C (Doc. 46-7) (Defendants' Rule 26 Fourth Disclosures - Photographs from Kootenai Wound Clinic from 5/25/21 to 7/13/21 (D0037 - D0045) (Doc. 46). The photographs include the following:
• 05/25/21 - L. Lower Leg (Doc. 46-7 at 4)
• 06/01/21 - Lt. Leg (Doc. 46-7 at 5)
• 06/15/21 - LLE (Doc. 46-7 at
• 06/15/21 - LLE (Doc. 46-7 at
• 06/29/21 - LLE (Doc. 46-7 at
• 06/29/21 - LLE (Doc. 46-7 at
• 07/13/21 - L Leg. (Doc. 46-7 at 10)
• 07/13/21 - L Leg Shin (Doc. 46-7 at 11)See Defendants' Motion to Modify (Doc. 46), Exhibit C (Doc. 46-7).
B. Plaintiff's Position
Plaintiff submits the Kootenai Wound Clinic Office Visit notes from June 15, 2021 through July 13, 2021, were disclosed to Defendants through the initial disclosures on April 15, 2022.
Plaintiff contends, in pertinent part:
Ms. Stensrud's initial disclosure, served on April 15, 2022, included photographs of her wounds. The photographs showed the progression of her healing between April 11, 2021, and February 2, 2022 (Disclosed Photographs of Ms. Stensrud's Bite Wound, attached as Exhibit 2). Defendants had the Kootenai Clinic records and progressive photographs of Ms. Stensrud's wounds since April 15, 2022. In addition, on May 16, 2022, Ms. Stensrud sent Defendants an authorization that would have allowed them to subpoena the Kootenai Clinic records, including any missing photographs for themselves. (Plaintiff's Response to Defendants Request for Production 1-15, attached as Exhibit 3.)See Plaintiff's Response to Defendants' Motion to Modify Scheduling Order (Doc. 51 at 2) (emphasis added). Plaintiff further contends Defendants were not diligent in obtaining photographs from Kootenai Clinic and Dr. Eades Rule 26 Report dated August 23, 2022 already addresses the smaller healed wounds in Exhibit A and Dr. Eades includes photographic evidence of the secondary “healed wounds” attached to his Rule 26 Report in Exhibit A (Doc. 46-5 at 12 and 13). See Plaintiff's Response (Doc. 51 at 5). Lastly, Plaintiff contends “Ms. Stensrud testified that this wound healed up quickly, but then broke open which prompted some additional treatment from Kootenai clinic. (Doc. 46-8).” Plaintiff's Response (Doc. 51 at 6). Plaintiff submits Defendants will not suffer prejudice by any delay in obtaining the Kootenai photographs, as Dr. Eades has already provided his opinion on the smaller healed wounds in his Rule 26 Report dated August 23, 2022.
IV. LAW
According to Federal Rules of Civil Procedure (Fed.R.Civ.P.), Rule 16(b)(4), “A schedule may be modified only for good cause and with the judge's consent.”
[R]ule 16(b)' s “good cause” standard primarily considers the diligence of the party seeking the amendment. The district court may modify the pretrial schedule “if it cannot reasonably be met despite the diligence of the party seeking the extension.” Fed.R.Civ.P. 16 advisory committee's notes (1983 amendment); [ ]; 6A WRIGHT, MILLER & KANE, Federal Practice and Procedure § 1522.1 at 231 (2d ed. 1990) (“good cause” means scheduling deadlines cannot be met despite party's diligence). Moreover, carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief. [ ]. Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification. [ ]. If that party was not diligent, the inquiry should end.Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (emphasis added).
Courts within this Circuit “have articulated and undertaken [a] three-step inquiry in resolving the question of ‘diligence' in the context of determining good cause under Rule 16[.]” (citations omitted) Under that inquiry:
[T]o demonstrate diligence under Rule 16's “good cause” standard, the movant may be required to show the following: (1) that [ ]he was diligent in assisting the [c]ourt in creating a workable Rule 16 order; (2) that h[is] noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding h[is] 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; and (3) that [ ]he was diligent in seeking amendment of the Rule 16 order, once it became apparent that [ ]he could not comply with the order. (citations omitted).
The diligence obligation is ongoing. “Parties must ‘diligently attempt to adhere to that schedule throughout the subsequent course of the litigation.'”Morgal v. Maricopa Cnty. Bd. of Sup'rs, 284 F.R.D. 452, 460 (D. Ariz. 2012).
V. THREE-STEP ANALYSIS re: ‘Diligence' for “Good Cause” under Rule 16
Step One: Defendants' Diligence in Assisting the Court in Creating a Rule 16 Order
The parties filed a Rule 26(f) Joint Case Management Report on March 31, 2022 (Doc. 16). The Court held a Scheduling Conference on April 14, 2022 (Doc. 18) in which both parties attended, and the Court filed the formal written Scheduling Order on April 15, 2022 (Doc. 19). A summary of the parties' suggested dates according to the Joint Case Management Report (Doc. 16) and the Court's final Scheduling Order follows:
Court
Plaintiff
Defendant
Move to join Addt'l Parties or Amend Pleadings
07/15/22
Initial Disclosures
04/15/22
04/15/22
Initial Expert Disclosures
09/01/22
11/03/22
Areas of Expert Witness Categories
02/01/23
60 days following close of fact discovery
Plaintiff's complete Expert Disclosure
03/01/23
90 days following close of fact discovery
Defendant's complete Expert Disclosure
05/01/23
60 days following Plaintiff's expert disclosure
Plaintiff's Rebuttal Expert Disclosure
06/01/23
30 days after Defendants' expert disclosure
Rebuttal Expert Disclosures
10/03/22
01/05/23
03/01/23
Expert Depositions
01/26/23
08/01/23
60 days afer Plaintiff's Rebuttal expert disclosure
Fact Witnesses
09/16/22
12/01/22
12/01/22
Discovery
11/01/22
12/01/22
12/01/22
Dispositive Motions
12/01/22
02/16/23
10/01/23
Joint Settlement Status Report
07/15/22
+ 90 days
01/09/23
09/01/23
30 days after completion of expert discovery
The Court finds Defendants diligently participated in assisting the Court with creating a workable Rule 16 Scheduling Order, Step One of the ‘good cause' analysis under Morgal, supra.
Step Two: Defendants' Noncompliance Reasonably Foreseeable or Anticipated At The Time of the Rule 16 Scheduling Conference
Pursuant to Federal Rules of Civil Procedure (Fed.R.Civ.P.), Rule 26(a)(1)(C), “A party must make the initial disclosures at or within 14 days after the parties' Rule 26(f) conference unless a different time is set by stipulation or court order[.]” Fed.R.Civ.P., Rules 26(a)(1)(C). With the parties' Joint Case Management Report filed on March 31, 2022 (Doc. 16), under Rule 26, fourteen days thereafter falls on April 14, 2022. The Rule 16 Scheduling Conference was held the same day that the parties exchanged initial disclosures. Accordingly, “at the time of the Rule 16 Scheduling Conference” held April 14, 2022, it is not clear whether Defendants had the opportunity to review the Kootenai Office Visit records and deduce that photographs would be included with the records. However, Plaintiff did disclose Plaintiff's [progressive photographs]. The “progressive photographs” disclosed to Defendants with Plaintiff's Initial Disclosure on April 14, 2022, and attached to Plaintiff's Response (Doc. 51) as Exhibit 2 (Doc. 51-1), include a photograph of the wound on Plaintiff's shin, and referred to by Defendant as wound #2 (Doc. 51-1 at 28 of 60).
A. Kootenai photographs (Decl. of Niles) (Doc. 46-2), an employee of Defendant Friedberg's law office. Despite Ms. Rubio's detailed efforts, beginning at the request of Mr. Friedberg on July 16, 2022, for Ms. Rubio to “obtain the wound photographs of Plaintiff, Betty Stensrud, from Kootenai Wound Clinic in Idaho”; Defendants had the Kootenai Clinic records as of April 15, 2022, according to Plaintiff. See Response (Doc. 51), Exhibit 1 (Doc. 51-1 at 7, ¶ 2(A)(6)-(7). As suggested in Plaintiff's Response (Doc. 51 at 3), Defendants opted not to use a subpoena in the efforts to obtain the Kootenai photographs, despite receiving an authorization from Plaintiff on May 16, 2022, and instead, as stated in Ms. Rubio's Declaration (Doc. 46-2), in pertinent part,
On or about August 22, 2022, The Law Offices of Friedberg & Bunge received the medical and billing records of Plaintiff, Betty Stensrud, from the Kootenai Clinic from Ciox Health, an outside medical record vendor contracted by Kootenai Clinic to process and copy medical records requests. The Law Offices of Friedberg & Bunge routinely receives medical records and billings from Ciox Health from a number of different medical providers nationwide. There were no wound photographs provided as part of the medical records provided by Ciox Health or Kootenai Clinic.See Defendants' Motion to Modify Scheduling Order (Doc. 46), Decl. of Niles (Doc. 46-2 at 2, ¶ 4).
With the impending deadline of September 1, 2022, for full and complete initial expert disclosures, and the Defendants not having received the Kootenai photographs on August 22, 2022, despite knowing of their existence as of initial disclosure April 14, 2022, and despite having received Plaintiff's authorization on May 16, 2022, Defendants: 1) did not seek leave of the Court for an extension; 2) did not issue a subpoena; and 3) did not raise the discovery issue at the discovery conference held September 30, 2022, or raise the issue in the Joint Statement re: Discovery Dispute filed October 21, 2022 (Doc. 34). Defendants ultimately received the desired photographs on November 22, 2022.
The reasonable foreseeability that Defendants would face difficulty in obtaining the Kootenai photographs, and therefore not meet the expert disclosure deadline for the supplemental report from Dr. Eades, was not known ‘at the time of the Rule 16 Scheduling Conference'; however, Defendants' noncompliance with submission of a supplemental Rule 26 Report from Dr. Eades before the September 1, 2022 deadline is readily anticipated from the reference to the photographs in the Kootenai Records disclosed on April 14, 2022, to the receipt of Plaintiff's authorization on May 16, 2022, to receipt of the records without the photographs from Ciox Health on August 22, 2022, all prior to the deadline of September 1, 2022. Defendants had the means, and the method of obtaining the Kootenai photographs by subpoena, however, chose not to do so. In addition, of the 14 health authorizations Defendants sought from Plaintiff, Defendants did not include or seek authorization from Plaintiff for Ciox Health. (Doc. 56-3)
B. September 29, 2022 Deposition of Plaintiff
Defendants' noncompliance with the September 1, 2022 deadline for expert disclosure based on the September 29, 2022 Deposition of Plaintiff was reasonably foreseeable at the time of the Rule 16 Scheduling Conference on April 14, 2022. The Court finds that Defendants' scheduling of Plaintiff's deposition on September 29, 2022, with subsequent transcription on October 4, 2022, was within Defendants' control, or diligence, and therefore, ‘reasonably foreseeable or anticipated at the time of the Rule 16 scheduling conference' under Step Two of the diligence analysis for good cause.
Step Three : Defendants' diligence in seeking amendment of the Rule 16 order, once it became apparent that Defendants could not comply with the order.
Lastly, the parties raised discovery-related issues with the Court on two separate occasions, the first, on September 29, 2022 (Docs. 28 and 29), and the second, with the parties' Joint Statement re: Discovery Dispute on October 21, 2022 (Doc. 34), neither of which did Defendants raise the issue of the difficulty in obtaining the Kootenai photographs. At the time of filing the Joint Statement re: Discovery Dispute filed October 21, 2022, according to the Declaration of Ms. Rubio:
On [ ] October 21, 2022, I again called Laurie. A person named Jessica answered the phone and I asked to speak with the manager of the wound clinic whose name is Teresa Johnson. I left a message for Ms. Johnson reiterating what I was seeking and requested a return phone call. I did not receive a return call from Ms. Johnson.See Defendants' Motion to Modify Scheduling Order (Doc. 46), Decl. of Brooke Rubio (Doc. 46-2 at 3, ¶ 11).
Under the three-step analysis for determining a party's diligence in the Court's finding of whether good cause exists for modifying a scheduling order, the Court finds, based on the above analysis, that Defendants were not diligent in their efforts to obtain the Kootenai photographs as referenced in the Kootenai records originally disclosed to Defendants on April 15, 2022, under Morgal v. Maricopa Cnty. Bd. of Sup'rs, 284 F.R.D. 452 (D. Ariz. 2012). Specifically, Defendants did not pursue a subpoena, despite having authorization, and did not raise the issue with the Court, despite two other discovery matters raised and addressed by the Court on September 29, 2022, and October 21, 2022. Lastly, Defendants did not depose Plaintiff until September 29, 2022, at their discretion, knowing of the September 1, 2022, expert disclosure deadline.
Under Johnson, 975 F.2d at 209, the Court finds the Kootenai photographs and Plaintiff's September 29, 2022 deposition are not “new evidence” in support of modification of the existing Scheduling Order filed April 15, 2022 (Doc. 19).
Dr. Eades Rule 26 Report dated August 23, 2022, already addressed the smaller healed wounds in his report and attached his own photographs to the report (Doc. 46-5, pp. 12-13). Defendants therefore are not prejudiced by the “new evidence,” as Dr. Eades was already aware of the Kootenai Office Visit records, commented on, and photographed the wound(s), including the wound appearing on Plaintiff's shin, and according to Plaintiff, the Kootenai Clinic records disclosed on April 15, 2022 identified the secondary wound in the records and these records were available for Dr. Eades to review.
VI. CONCLUSION
Although the Court finds Defendants diligently participated in assisting the Court with creating a workable Rule 16 Scheduling Order, Defendants did not comply with submission of a supplement Rule 26 Report from Dr. Eades before the September 1, 2022 deadline, which was foreseeable, and did not schedule Plaintiff's deposition until September 29, 2022, nor was the issue of anticipated noncompliance raised with the Court at the two discovery related matters. The Court finds the basis “of new evidence” lacking.
Based upon the foregoing, the Court finds, that Defendants' Motion to Modify Scheduling Order (Doc. 46) is insufficient, for a finding of good cause, to modify the scheduling order, and should be denied.
VII. RECOMMENDATION
For the reasons above, the Magistrate Judge recommends that the District Judge enter an order DENYING Defendants' Motion to Modify Scheduling Order (Doc. 46).
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Judge. If objections are filed, the parties should use the following case number: CV-22-00062-TUC-JCH.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.